In a previous post I explained how to assert your mask exemption, if you are challenged for daring to bare your face. In the vast majority of cases, you should expect the doorman to nod you through as soon as you say “I’m exempt,” or at least back down when you explain the rules. You shouldn’t have to present a card, or any form of proof, or to declare your medical conditions. In a minority of cases, however, and sometimes in an employment situation, you might face ongoing oppsition. If you are denied service or access to anything, including employment, because you cannot wear a mask without it adversely affecting your health, then you should first make a written complaint and provide a reasonable timeframe for reply. Explain what happened, where and when, and who was involved. 14 days is usually an adequate time for a response.
Following a written complaint, if you don’t achieve a satisfactory outcome (i.e., the business continues to unlawfully ignore your exemption, and states this in writing), then you can proceed to a letter before action. (If you receive no response to your complaint, best practice would be to write again, referring to the date of your previous letter. You could state, “if I do not receive a satisfactory response from you within 7 days then I may have no other option than to pursue legal action against you for breaching the Equality Act 2010.” That would be their final warning before your ‘letter before action,’ which is part of the legal process.)
Kester Disability Rights, last December, won the first mask discrimination case for a client, who received £7,000 in compensation. The case was settled out of court through negotiation, as there was no dispute that the lady had been denied access to a service. Since then, Kester disability rights have been inundated with mask cases so they have put together a set of resources for those who face similar discrimination challenges.
“Refusing access to people unable to wear face coverings due to disability is direct discrimination – no different to denying access to a black or gay person for example.”
[Kester Disability Rights]
Here is the template ‘letter before claim’ written by Kester Disability Rights:
Following this, should you meet with continued opposition, Kester explains:
- Taking things further can be done using the Disability Attitude Readjustment Tool in England and Wales.
- Alternatively you can use the Equality and Human Rights Commission advice service.
- Or there is the Equality Commission for Northern Ireland.
“Please always remember there is usually a six month time limit for a disability discrimination claim, although for employment cases it is usually 3 months.”
Going further, Kester explains, your options are:
1. To seek a solicitor by contacting the Law Society: https://solicitors.lawsociety.org.uk
2. To use an alternative route if there is one such as an Ombudsman or the NHS complaints procedure.
3. To run your own county court claim. Here is a template court form. If you are on a low income you can get help with court fees by following this link: https://www.gov.uk/get-help-with-court-fees. You can then put the reference number in the top right hand corner of the form.
To identify the correct legal name of the Defendant use the Companies House website to get the correct name and address for the business that discriminated against you. https://www.gov.uk/get-information-about-a-company. You can then make sure you have the correct name and address on your claim form.
Once your claim is issued you usually have 4 months to send it to the Defendant if you use this letter when sending your claim to the court.
You should include 3 copies – two to be sealed and returned to you (one to keep and one to send to the Defendant) and one that the court will keep. But if you have a disability that makes this unrealistic you could use the court email making it clear you are doing that as a disabled litigant in person who cannot meet the standard requirements – firstname.lastname@example.org.
This approach gives you further time to negotiate. The onus is then on you to send the claim form to the Defendant.
To proceed you would then need
a. To be able to write your particulars of claim to follow the claim form. This is a summary of your case. Here is a template. We are sorry this is in PDF – our website does not take other formats but you can convert it to Word and then work with it – various online converters are available. Or try copying and pasting the text.
b. Medical evidence. Although you don’t need medical evidence to exercise a face coverings exemption you will for your court claim. The evidence must lead a reasonable person to believe you are disabled under the Equality Act 2010 (namely that you have a condition that has a substantial impact on your ability to carry out normal day to day activities for more than a year). It must also lead a reasonable person to believe you cannot safely wear a face covering. You do not need to send medical evidence with your claim but you must have it ready in case your claim is defended.
The risks of running your court claim yourself
- The Defendant might intimidate you with threats of costs proceedings against you. If your case was not allocated to the small claims track, and you lost, and you have income and/or capital and/or assets, you could be liable to pay the other side’s legal costs if a court thought it was just for you to do so. Basically the less you have the less risk there is. So if you are on means tested benefits and have no savings or assets of any significance there is virtually no risk. This is because even if the Defendant got an order for costs you could not afford to pay it anyway and it would be an unsecured debt.
- Proceedings can get stressful. Defendants may deploy ruthless lawyers to try and face you down and use intimidatory tactics to do so. Be prepared to be made to feel that you are on trial, but remember you are not, the Defendant is. Parliament has provided face coverings exemptions, it is considered unlikely a court would find in favour of a service provider trying to argue those exemptions don’t apply to it.
- The courts are not necessarily helpful to litigants in person, but the senior judges say they should be: https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf. So officially you are welcome in the courts service as a disabled litigant in person and can expect reasonable accommodations as you seek justice.
- If you are not court fees exempt you will have to pay court fees and if you lose you cannot recover them. If you win, however, the Defendant would probably have to pay them. Information about court fees can be found here: https://www.gov.uk/make-court-claim-for-money/court-fees . The template claim would attract a fee of £455, if you are not fees exempt, but if you claim less the fee is less.
The Advantages of running your own case
- You do not have to pay anyone a share of any winnings – you get them all.
- You have control.
- The court has to make reasonable accommodations for you.
- The Defendant is likely to have to do the bulk of any paperwork involved to provide the case bundle for the court.
- The Equality Act is largely only enforced by people bringing cases. There are so many potential discrimination cases that lawyers and advice agencies will only be able to cover a fraction of the total demand. If you can do it yourself you are ready to deal with any other discrimination you may face.
- There is support available for litigants in person from Support Through Court: https://www.supportthroughcourt.org
Please remember there is usually a six month time limit from the incident date to get your case to court.
We are sorry we cannot do more. We are one of a tiny number of organisations that have done anything about the scandal of disability discrimination arising from the face coverings regime. Disability and advice charities with substantial funding bases have been largely silent. We were hoping the work could be spread out more, but so much of it has come to us and we are too small to do it all.
We are seeking additional capacity as we build the business to fight the tidal wave of disability discrimination engulfing society. Unfortunately, this will take time hence our asking you to use the above information.
The above guide and resources were originally published by Kester Disability Rights Website on 28 June 2021. If you wish to support the work that Kester has taken on, almost single-handedly, they have a donate button on their website.