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Coronavirus: should my business be closing?

This Article has is now out of date following the HSE’s policy decision to regulate risks from viruses in general circulation – please see our latest article on COVID-19 and health and safety requirements: https://www.ashfords.co.uk/news-and-media/general/covid-19-returning-to-work-health-safety-and-related-employment-issues.

As coronavirus lockdown measures continue, many businesses are facing increasing pressure to consider closing premises and ceasing operation. When making this decision, there are a number of issues to consider, including direct legal restrictions, indirect legal restrictions and practical issues around staffing, commercial factors and being seen to act in the public interest. There is significant confusion about the position following multiple guidance notes and rapid legislative activity by the Government. The below is a quick guide to some of the key legal issues to consider:

Direct Restrictions on Businesses

There is no direct legal requirement to close your business unless you are in one of the categories of business that has been ordered to close under The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

Broadly, the businesses which are required to close are in the retail sector and restaurants and cafes serving food on the premises. There are also exemptions to these restrictions, so you should check the legislation and take advice if you are uncertain whether you fall into one of the relevant categories.

There have been several high profile stories in the media in the last week where businesses have argued they should stay open – the focus of the arguments has been whether they fit within one of the relevant exemptions. There has also been public debate about whether the construction sector should be shutting down but, as yet, there is no direct requirement that construction businesses should do so.

Some confusion has also arisen in the last week as certain public bodies have issued ‘Lockdown Passes’ to key contractors and suppliers. These confirm that certain employees/businesses are to be considered ‘keyworkers’. The term ‘keyworker’ is currently only relevant in relation to access to education and there is no need therefore for businesses to be issuing their employees with ‘Lockdown Passes’ at this stage in order to go about their business and travel to and from work. If your business does provide goods or services to public bodies, you may want to consult with them as to whether they consider your employees to be keyworkers, or that your business is essential to them in some way, just in case further restrictions and exemptions come into force.

Under its new powers, the Government may extend restrictions to include other sectors and businesses and it is important to stay up to date with announcements and notices.

For the time being, the Government’s broad position is that:

“With the exception of the organisations covered above in the section on closing certain businesses and venues, the government has not required any other businesses to close – indeed it is important for business to carry on.”

Individuals are legally prohibited from leaving their place of residence without reasonable excuse, which includes:

“to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living”

Those travelling to work therefore need to be able to demonstrate that it is not reasonable for them to work from home.

Indirect Restrictions on Business

Businesses should ensure they are able to follow the Government advice on social distancing at work, including following and enforcing any guidance which is aimed at protecting vulnerable groups within their workforce. Sector specific guidance has been issued for some sectors and businesses should refer to the guidance applicable to them. There will also be a variety of employment-law related issues to be considered in relation to individual employees and their personal circumstances.

The HSE has previously indicated that it does not consider the risk from viruses in general circulation within the population to be a risk arising from work, unless that work has some direct connection with the management of viral risks, e.g. health and social care, clinical work and hygiene services. Such businesses will be subject to much more involved set of risk controls and this summary is not aimed at those businesses. Enforcement action under general health and safety legislation is therefore unlikely for most businesses and legal risks will arise from coronavirus-specific legislation.

It is unclear at this stage if there will be any litigation or enforcement in relation to the failure of businesses to follow advice on social distancing and other relevant controls while employees are still working and there is no express legal requirement to do so, however, if public officials have specific concerns that employees of a particular business are at risk or pose a risk to others, they could in theory require closure of premises and detention of individuals for testing. A failure to follow advice is capable of having a number of damaging consequences in terms of employment law and reputation damage. It should be noted that Government guidance is of a generalised nature and business may adopt additional or supplementary measures such as the use of masks, if there is evidence to support their contribution to risk control.

It is plausible that those affected by a failure to enforce the Government advice within a business could bring civil claims for personal injury or death but such claims would typically be fraught with legal and evidential difficulties for claimants and are therefore likely to be extremely rare.

Legal liabilities for breaches of health and safety law are much more likely to arise where employers have not been able to manage important factors around other workplace risks because of staff shortages or other impacts of COVID-19, e.g.:

  • Monitoring and supervision
  • Risk assessment
  • Competence and training (on new or unfamiliar tasks)
  • Management of contractors
  • Lone working
  • Home working

If the impact of Covid-19 means that your arrangements for risk management and compliance generally are compromised, then closure may be unavoidable unless proportionate adjustments can be made.

If you have any queries in relation to the continued operation of your business, please contact Ben Derrington, head of Ashford’s Business Risk and Regulation team at b.derrington@ashfords.co.uk or visit the Coronavirus/ COVID-19 area on our website.

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