COVID-19 Businesses - to open or close? 13 May 2020

Which businesses have to close to the public during the lockdown? – 13^th May 2020 update

The laws introduced to implement the coronavirus lockdown were been gradually introduced with some businesses having to close earlier than others. Legislation was introduced on 26^th March 2020 in England (Wales and Scotland announced similar restrictions) being The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which brought in the strictest form of the lockdown.  On 13^th March 2020 the regulations were amended slightly to relax the rules slightly including allowing some businesses to reopen or adapt.

A summary of those amendments are:

• It is now a reasonable excuse for someone to leave the place they live to collect items which have been ordered via a website, on-line, telephone, text or by post. Previously these goods would have to be delivered – essentially this allows click and collect for non-essential shops provided the actual shop remains closed and social distancing can be introduced.
• It is now also a reasonable excuse for someone to leave the place they live to visit an estate agents, letting agents, developer marketing suites and show homes and also to view properties for sale or let – this means that the property sales and marketing sector can reopen to the public provided social distancing measures can be introduced.
• Garden Centres and outdoor sports courts are now explicitly allowed to be open – any indoor sporting facilities must still remain closed.

The Government’s advice on businesses that were not required to close previously has now also changed recommending that they try to reopen and bring staff back to work, but only if the employees are unable to work from home (if they are able to they should work from home) and the workplace can be made safe for employees to attend. A number of guides have been produced about this which include the need to carry out a health and safety risk inspection and use a new COVID-19 HSE poster – the guides can be found at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

The law has more detail on those business premises which are allowed to stay open than they give on those which must close (save for hospitality and leisure). Below we summarise (as far as we can) the rules that are now in force and help to answer whether you can or can’t continue to trade.

Which retail type premises can stay open?

The rules now state all businesses which sell or hire goods to the public in a shop or provide library services must close their premises to the public, with the exception of the following types of business which can remain open (but must implement social distancing):

• Food retailers, including food markets, supermarkets, convenience stores and corner shops;
• Off licenses and licensed shops selling alcohol (including breweries);
• Pharmacies (including non-dispensing pharmacies) and chemists;
• Newsagents;
• Homeware, building supplies and hardware stores;
• Petrol stations;
• Car repair and MOT services;
• Bicycle shops;
• Taxi or vehicle hire businesses;
• Banks, building societies, credit unions, short term loan providers and cash points;
• Post offices;
• Funeral directors;
• Laundrettes and dry cleaners;
• Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health;
• Veterinary surgeons and pet shops;
• Agricultural supplies shop;
• Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of another business permitted to stay open;
• Car parks;
• Public toilets;
• Garden Centres;
• Open/Outdoor Sports Courts.

What if my retail or service business is not on the list that can stay open?

Any business which is not on the list of businesses that can stay open above but which sells or hires goods to the public in a shop (or provides library services) can still operate behind closed doors and provide delivery services or post products to their customers provided they can still work safely within the Public Health England Guidelines and all orders are taken through a website, other on-line communication, telephone, (including orders by text message) or by post.

As it is now permitted for people to leave their homes to collect items they ordered from a distance in the above way you could also operate what is in effect a click and collect service even for non-essential items provided the shop actually remains closed to the public and social distancing is used.

Any business which does not sell or hire goods to the public in a shop, provide library services, nor is on the below list of hospitality, service and leisure businesses below that must also close can remain open, but must operate social distancing measures and given the need for a reasonable excuse for individuals to leave the house is unlikely to be able to be open to the public.

Given the rules on social distancing even if your business can stay open without direct public interaction you should consider whether you can feasibly operate the business with your staff working from home rather than attending a place of work. If they can then you should arrange for this to happen.

Only if you cannot have an individual staff member work from home in their role should you have them coming into their place of work. If this is required, you must operate social distancing measures in the workplace in line with Public Health England guidelines. If this is not possible you should not have as many staff in the business or should close parts or all of it as this would be a health and safety issue.

If you need to make cuts to staff numbers during this time you may be able to use some of the Government’s business support packages such as the Coronavirus Job Retention Scheme (furlough scheme). See our guide to this scheme and other support available to businesses. You need to make sure that you adhere to employment law principles when dealing with staffing issues related to coronavirus. If you need any help or guidance on what to do contact our Commercial and Employment Team at Fieldings Porter who would be happy to help guide you through.

What businesses need to close in the hospitality, leisure and service sectors?

The rules specify hospitality, leisure and service premises that must close to the public are as follows:

• Cinemas;
• Theatres;
• Nightclubs;
• Bingo halls;
• Concert halls;
• Museums and galleries;
• Casinos;
• Betting shops;
• Spas;
• Nail, beauty, hair salons and barbers;
• Massage parlours;
• Tattoo and piercing parlours;
• Skating rinks;
• Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities;
• Funfairs (whether outdoors or indoors);
• Playgrounds, indoor sports courts and outdoor gyms;
• Outdoor markets (except for stalls selling food);
• Car showrooms;
• Auction Houses;
• Businesses consisting of the provision of holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, save to provide accommodation
  • for any person, who —
    • is unable to return to their main residence;
    • uses that accommodation as their main residence;
    • needs accommodation while moving house;
    • needs accommodation to attend a funeral;
    • critical and key workers who have previously been eligible for their children to go to school (as defined in the “Guidance for critical workers who can access schools or educational settings”) who need accommodation related to their work;
  • to support services for the homeless;
  • to host blood donation sessions,
  • for any purpose requested by the Secretary of State, or a local authority from time to time.
• The following premises must also close unless they are providing products and services for consumption off the premises:
• Restaurants, including restaurants and dining rooms in hotels or members’ clubs.
• Cafes, including workplace canteens (save for workplace canteens which may remain open where there is no practical alternative for staff at that workplace to obtain food), but not including the following which may stay open—
  • cafes or canteens at a hospital, care home or school;
  • canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
  • services providing food or drink to the homeless.
• Bars, including bars in hotels or members’ clubs.
• Public houses

Again, it may be possible for some of these businesses to continue to operate in some form which does not involve direct physical contact with the public and we have a separate guide for businesses in the hospitality and leisure sector which you should read for more details. The Fieldings Porter Commercial, Property and Licensing Team will be happy to help with enquires relating to this sector.

Do places of worship need to close?

The rules that were introduced in March also require places of worship to close except where they are being used:

• for funerals;
• to broadcast an act of worship, whether over the internet or as part of a radio or television broadcast;
• to provide essential voluntary services or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).

This does mean that most religious services cannot take place in person, but the ministers themselves can still carry out the services in order to stream them to their congregation who can listen or watch from their lockdown location.

What is likely to happen if we don’t close our business to the public?

The regulations gives the police, police community support officers and the local authority the power to enforce the lockdown. This can be through the issuing of Prohibition Notices, fixed penalties or prosecutions for non-compliance with unlimited fines (if prosecuted in the Magistrates' Courts). Those penalties relate to the business owner where a business owner does not close a business as required. However, individuals being out of their home in contravention of the regulations (which a visit to a restricted business as a customer would probably be) may also face a fixed penalty, prosecution or can be removed and taken home by reasonable force.

Should you find yourself facing a prohibition notice, fixed penalty or prosecution for operating your premises in breach of the regulations please contact us at Fieldings Porter for guidance on what you can do next.

What if I’m still not sure whether I need to close my business or premises?

If you need any further advice on whether you can keep your premises open during the Coronavirus outbreak or whether there are any other legal implications of adapting your business or its staffing to cope please contact Fieldings Porter’s Commercial Department and we would be happy to help guide you.

13^th May 2020