What is the legal requirement?
As at least five NHS trusts in England have brought back mask requirements due to a ‘resurgence’ of covid this autumn, this piece by Ryan Karter is indeed timely. It is important to know your rights and to insist on them being upheld.
Article by Ryan Karter, Trade Union Official Workers of England Union
This might come as a surprise to those working in healthcare, but since 27th January 2022, there has been no legal requirement to wear a mask or face covering in any healthcare setting in England. The other devolved nations have also followed suit. So why are NHS trusts and care homes still insisting on this?
In Laura Dodsworth’s book, A State of Fear, she interviews Dr Gavin Morgan, a former member of the SAGE SPI-B team of behavioural scientists. He says that some colleagues in the group believed masks were useful in promoting a sense of ‘solidarity’, strengthening people’s feelings of cohesion in the collective fight against the virus. The stark U-turn by state-funded experts in May/June 2020 – from asserting that there was no benefit to be gained from masking healthy people to the imposition of mask mandates – together with the World Health Organisation’s silence when accused of changing policy in response to political lobbying, all provide further credence to the conclusion that mass masking was implemented primarily as a compliance device.
As a Workers of England Union representative, on an almost daily basis I now find myself sat in front of NHS and care home grievance panels, defending members who do not wish to spend 12+ hour working shifts, with their faces covered by a useless (but very harmful) blue surgical mask. On every occasion, I ask the chair of the meeting the same questions:
- Have you carried out an individual risk assessment, (as per section 3 of the Management of Health and Safety at Work Regulations 1999), declaring the employee is medically fit to wear a mask throughout their entire working shift?
- Have you undertaken an individual fit test, carried out by an appropriately qualified health and safety practitioner?
- According to the Health and Safety Executive (the government’s own regulator on PPE), it states “[fluid resistant surgical masks] do not provide full respiratory protection against smaller suspended droplets and aerosols. That is, they are not regarded as personal protective equipment (PPE) under the European Directive 89/686/EEC (PPE Regulation 2002 SI 2002 No. 1144).” So, why are you insisting they be worn by all staff?
- Why do you believe masks work against SARS-CoV2 (Covid-19) but not against influenza, adenovirus, rhinovirus, or the other six identified coronaviruses, four of which cause the common cold?
- Can you provide any evidence of the efficacy of surgical masks against an airborne virus spread by aerosols, measuring approximately 50-100nm in size?
- Do you understand the difference between guidance and law?
- Do you understand that “guidance” is not legally binding? If there is a conflict between guidance and law, it is the law which sets the precedent. Any “policy” set by an employer must be both lawful and operate with the existing Equality Act 2010 legislation.
NHS trusts and care homes are acting illegally by wilfully ignoring health and safety legislation, and discrimination law, in favour of their nonsensical blanket “policies”. They may argue they are making “reasonable adjustments” by moving staff who don’t wish to wear a mask, to non patient-facing roles. However this is known as a fundamental or repudiatory breach of contract. To force a paramedic, nurse, doctor, midwife or carer into a non-clinical role is a complete change of job duties, and therefore an unauthorised unilateral variation of contract. It is a form of unfair constructive dismissal. This deskills healthcare staff by depriving them of their daily experience delivering frontline care, and of their continuous professional development. It is simply unthinkable that in in the middle of an alleged “NHS staffing and care home crisis”, skilled medical personnel are being denied access to their jobs, unless they wear a useless blue face mask under duress and coercion.
If you are facing discrimination in your workplace, the Workers of England Union can help. We are actively challenging NHS trusts and care homes over their draconian mask policies, and taking them to employment tribunals where necessary. Unlike other unions, we respect employees’ bodily autonomy and their right to say no to any form of medical intervention. We fought them on the Covid-19 vaccine mandates, and won. We will do the same on the mask policies. Join us.
Please visit the following websites for further resources
HART has previously written extensively on the topic of masks. For further information and evidence please refer to the following articles:
- Masks do more harm than good – Ineffectual & psychologically malignant
- Masks in NHS Campaign – The mask ‘requirement’ in healthcare – defending the indefensible
- The relaxation of the mask requirement in healthcare settings – Reluctance of the NHS to return to normal
- Universal masking – is it still lurking around the corner? – Constant visual reminders of disease must go
- Why are healthcare venues persisting with masks? – The triumph of culture over rationality
- Have face masks reduced covid cases? – Comparing school-age cases in England and Scotland during autumn 2021 shows an effect
- How Confident is the Government in its ‘Evidence’ on Masks – It turns out — not certain at all!