Trading Through Covid-19

Business owners – don’t risk a criminal conviction.

On the 26th March 2020 the Health Protection (Corona Virus Restrictions) (England) Regulations 2020 took effect to enforce the restrictions and make it a criminal offence for businesses not to comply (“the Regulations”).

This article focuses on the position in England. However, there are equivalent regulations for Scotland and Wales, which, whilst not identical are similar in nature.

The Regulations are in effect for a six month period, to be reviewed at 21 day intervals, largely depending on the impact the current control measures have, regarding whether any further amendments or further extension will be necessary.

Whilst certain businesses were forced to close their doors the Regulations impose restrictions on all other businesses, making it a criminal offence not to comply.

What does this mean?

Businesses are now:
1) required to restrict access to its premises to those persons who are required to carry on, or provide its services and,
2) to close premises which are not required to carry out its business or provide its services.

The Local Authority has been provided with the designated authority from the Secretary of State to take the appropriate enforcement action against businesses. Businesses which fail to comply will find themselves committing a criminal offence and subject to further action. Therefore, businesses, need to put appropriate measures in place to avoid gatherings of any kind and the ongoing risk of spreading Covid19, by adhering to the Regulations.

Your local enforcement officer can take such action as is deemed necessary to enforce any requirement within the Regulations. This will include serving prohibition notices, applying fixed penalty notices, or alternatively deciding to prosecute a business in the Magistrates Court. If a business is prosecuted its owners will find themselves facing a criminal record, together with unlimited fines for non compliance.

The pre-existing duties to ensure the welfare of your employees and others pursuant to health & safety legislation remain in situ and therefore businesses will need to assess the risks of Covid19 and to take the appropriate action in any event.

Landlords and Creditors.

The current crisis has seen the introduction of the Coronavirus Retention Scheme, other funding option becoming available, and changes in other legal areas to restrict enforcement by landlords and creditors to provide some breathing space to enable businesses to comply with the regulations.

The Regulations will inevitably result in businesses needing to take stock, re-evaluate its business needs and staffing arrangements when adopting new practices.

Social Distancing.

Whilst not expressly provided for in the Regulations the public health guidance requires social distancing to be applied. However, the Local Authority will be looking at whether businesses have incorporated measures to minimise contact with others and ensure compliance with the Regulations in order to protect health and the spread of Covid19.

Whilst the official guidance concerning Covid19 does not have legal effect in its own right, it will be persuasive as to good practice to be followed during the emergency period. Therefore, putting measures in place to demonstrate you have tried to follow such practices, so far as practicable, will still be of assistance to businesses facing a prosecution, should the need arise.

There is no specific power of entry in England, but the Local Authority enforcement officers are entitled to take what action is necessary to enforce the Regulations. If a business is perceived to be carrying on and very much adopting the attitude that it’s business as usual, without safeguarding its employees and others, the Local Authority will be likely to step in and take action.

A prohibition notice will result in immediate disruption to business continuity and the ability to trade whilst it remains in effect. Should the local Authority Enforcement Officer decide to prosecute a business, its owners could also find themselves with a criminal record, together with unlimited fines, as mentioned..

The Regulations provide for fixed penalty notices, whereby the first notice will attract a penalty of £60.00 (£30.00 if paid within 14 days of the notice). In the event there is more than one breach the fixed penalty fee increases up to a maximum of £960.00. There is nothing in the Regulations to indicate that the Local Authority will have to impose fixed penalty notices and therefore it could elect to use its discretion to proceed with a criminal prosecution.

For advice on this, and further advice in respect of either employment law, health and safety legislation and what the Regulations mean to your business contact us today.