Making the UK workplace COVID safe

Rumours of the imminent return of the hospitality sector may have been overstated. Many operators may be ready to open in some shape or other after weeks of painstaking planning to ensure that premises can trade. But until employees are back off furlough, premises have been deep cleaned and the supply chain can get back to anything like normal, even making the 4 July restart date with some form of phased reopening might be a tall order for the industry at this time.

Food business and catering operators need to restore customer confidence, and quickly. Time will tell whether the long-awaited reopening will prompt sufficient pent up demand quickly enough to justify the decision to re-open, even if only trading at a considerable loss for the time being.

Businesses have been given guidance from the government, Public Health England and the Health and Safety Executive about what steps they are required to take in order to meet the law. Bare compliance with the guidance might be regarded as a minimum level of safety to entice nervous customers back and some of the larger players in the sector are going even further than the law or guidance demands. Some of the published guidance, and the regulations which followed, were hastily written, without reference to the industry stakeholders and in places is vague and ambiguous.

So how can employers convince their staff that things are safe and secure and how can members of the public be reassured of being safe or that the guidance is being met? Who could blame employers who might be nervous to sign off and display a self-certification of compliance against measures that may not be workable and certainly have not been tried and tested yet? The retail sector has already had a head start over leisure and hospitality. If today’s supermarket experience is so different to what went before, then what can we really expect our next visit to a pub, restaurant or leisure facility is going to look and feel like?

Given that guidance was being created, amended, varied and in some cases reversed at short notice, it is hoped that businesses which have clearly spent a lot of time and effort on a Covid –secure workplace environment will have little to fear. If a documented procedure looks to have been their best stab at a workable system, the worst they ought to face is the odd suggestion of best practice from a thorough enforcement officer by way of an informal letter. New restart policies may not be perfect, but operators know their industry and their own businesses better than any regulator.

Any attempt to prosecute or serve a notice on a food business operator is likely to be met with an appeal to the better nature of the enforcing officer and a look at the public interest section in their own enforcement management model or local policy.

The guidance may not feature the same legal catch all defence of duties being subject to the “reasonably practicable” test, but a close examination does allow quite some wriggle room for situations where try as one might, the 2 metre separation rule may just not be possible. Likewise, adding physical barriers or removing workstations might risk the ongoing viability of some sites or businesses. Many requirements may prove to be unenforceable on the face of the guidance, even in extreme cases or as a result of complaints from public or whistle-blower employees.

Many of the queries Keoghs have received relate to how far these requirements are absolute and how in practice, the employer will be able to enforce and implement them. Social media and public expectation between customer perception means a disconnect between what they will expect to see and what is actually feasible in practice. One can anticipate complaints to local authorities and local licensing officers who may equally try to enforce these measures as if they were conditions of a license in the usual way.

Given that a number of Primary Authorities are reluctant to sign off any FBO’s restart plans and Covid-secure policies across the sector, what hope have recently unfurloughed general managers got of understanding the finer detail? They may not be certain about what is guidance, what is law and what was merely an answer to a question at a government press conference or a report they saw in the media or online.

It is hoped that enforcement and investigation will be proportionate and pragmatic. This should mean few examples of formal enforcement, but time and again we see that the biggest well-known names in a sector are vulnerable to some stringent enforcement where their best attempts to implement the rules, on paper or in practice, may not actually be possible.

Chris Green, partner in Crime and Regulatory at law firm Keoghs