COVID-19 EXPERT LEGAL INSIGHTS

COVID-19: Can you be prosecuted for opening your shop?

11 June 2020

The Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Alok Sharma, announced this week that non-essential shops will be allowed to open from 15 June. Mr Sharma also stated that if shops do not follow COVID-secure guidelines they could be subject to enforcement notices. What does this mean?
 

Obligations placed on shop owners

Section 3 of the Health and Safety at Work etc Act 1974 (“HSWA 1974”) places positive obligations on employers and the self-employed to ensure, so far as is reasonably practicable, that non-employees (i.e. members of the public) who may be affected (i.e. members of the public who walk into a shop) are not exposed to health or safety risks. This sits alongside the obligations under s.2 HSWA 1974, which, as set out in our previous blog, require employers to ensure the health and safety of their employees is properly managed. With shops opening, store owners will need to consider their obligations under both sections; a failure to do either or both is a criminal offence.

Guidance on how BEIS consider you can do this in the context of the on-going COVID-19 pandemic is here. At sections 4 and 5 it explains how shop owners can minimise the contact risk from individuals visiting their stores through practical measures and information provided. This includes:

  • Providing clear guidance on social distancing and hygiene for people on arrival – through signage and visual aids;
  • Defining and limiting the number of customers able to enter the store, to ensure 2m distancing rule is maintained (for example by implementing a queuing system). Shops should assess how customers walk around the shop to address how best to reduce congestion;
  • Encouraging the use of hand sanitisers or hand washing facilities as people enter the premises to reduce the risk of transmission;
  • Encouraging customers, if at all possible, to avoid handling products (fitting rooms should be closed wherever possible);
  • Ensuring there is sufficient ventilation and frequent cleaning;
  • Storing returned items for a period of 72 hours, or cleaning them before displaying on the shop floor.

At section 6 the guidance makes clear that the use of face masks is not a replacement for other ways of managing risk.

Enforcement notices

As explained in our previous blog, enforcement notices can be issued to a person or a business who a local authority or the HSE considers is or has breached health and safety legislation. These take the form of either an Improvement Notice, which requires health and safety contraventions to be remedied within a specified time; or a Prohibition Notice, which requires the cessation of an activity (which may in effect mean the temporary closure of a business) due to the risk to safety said to arise from that activity. Whilst these notices are civil in nature, a failure to comply with the notice is a criminal offence (s.33(1)(g) HSWA 1974).  It is therefore important a business addresses and continuously reviews what it can reasonably do to prevent exposure to health or safety risks.

If you think you have managed the risk and have been improperly issued an enforcement notice, you can challenge it. This may be an important tool for businesses in the current climate and constant evolving scientific advice.

Prosecutions

There are a number of reasons why the HSE or local authorities will be unable or dissuaded from instituting a prosecution for a COVID-19 health and safety risk (see our previous blog). Nonetheless, the best way to protect you and your business is to address the risks now, implement risk-reducing measures and have in place a record which demonstrates your procedures. Keep this under review and adjust it in line with updated scientific advice.

Further information

Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.

 

About the authors

Jonathan Grimes is a Partner in the criminal litigation team who specialises in serious and complex criminal cases. He represents individuals and organisations in all areas of financial services and business crime as well as health and safety and related areas. He leads the firm’s cross practice Health Safety and Environment Group. He has acted in numerous cases involving allegations of financial wrongdoing and has experience of investigations by HSE, SFO, FCA, HMRC, CMA, NCA and the police as well as a number of foreign investigative authorities.

Sophie Wood is a senior associate with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations and public inquiries. Sophie has acted for individuals involved in investigations brought by the HSE and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.

 

COVID-19 related insights:

COVID-19 related insights:

Our COVID-19 statement

We recognise that these unique times are presenting unprecedented challenges for our clients and we are here to support you in any way we can.

Click to view

Can you get out of or suspend a contract because of Coronavirus?

Alex Torpey covers the key things to look out for if you are relying on the Force Majeure clause.

Watch the video on LinkedIn

Overcoming the challenges of co-parenting for separated and divorced parents

Rachel Freeman, Partner in our Family Law team, addresses some issues that we are seeing arise for separated parents in the current crisis.

Read the blog

Tech in Two Minutes - Episode 7 - The Coronavirus challenge for tech coworking spaces

Andrew Solomon speaks about the challenge for tech companies and coworking spaces during the current COVID-19 pandemic.

Listen to the podcast

Property done Properly - Episode 1 - COVID-19: Tips for documenting a Rent Concession

Rent Concessions are on the rise during the outbreak of COVID-19. In the first Property done Properly podcast, David Newnham discusses six of the practical considerations when documenting Rent Concessions

Listen to the podcast

The legal basis for lockdown

Alun Milford, Partner in our Criminal Litigation team, provides an in-depth look at the legal basis behind the current lockdown.

Read the blog

Managing your Migrant workforce in the COVID-19 crisis

On Friday 3 April, immigration partner and head of department, Nick Rollason, hosted a webinar looking at urgent issues employers are facing during the COVID-19 crisis and answered some of the key questions being raised.

Watch the webinar recording

Furlough leave and the Coronavirus Job Retention Scheme: key legal considerations for Employers

On Thursday 9 April, Andreas White, Partner in our Employment Law Team, delivered an overview of the scheme with a focus of the key legal issues for UK employers.

Watch the webinar recording

Coronavirus and the perils of signing your Will

Will instructions have apparently risen by 30% since COVID-19 reached our shores. What effect does COVID-19 have on Will signings? James Ward and Diva Shah in our Private Client team blog.

Read the blog

The juggling act of a single mother, home school teacher and head of a family team

Charlotte Bradley, Head of our Family Law Team, reflects on how the COVID-19 crisis has affected working parents like her.

Read the blog

The future public inquiry into COVID-19

Calls for a public inquiry are continuing to mount and are likely to prove difficult to resist. In this blog, Sophie Kemp considers the framework for such inquiries, and the key issues likely to form the core of its terms of reference.

Read the blog

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility