The last 2 weeks have seen some truly extraordinary legislation passed by both the UK and Scottish Parliaments often with little or no scrutiny. It has become apparent to us in the last few days that there is still a significant degree of confusion for businesses about whether they can continue to operate at all.

This is intended as a general guide only and if you are considering whether you can continue to operate it is extremely important to seek advice

The principal restrictions in Scotland are now set out in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. [Note that if you’re searching online for information the best search term is to use ‘coronavirus’ as one word] These regulations were enacted by the Scottish Government on 26 March under powers contained in the more wide-ranging UK legislation taking effect from 25 March.

The Scottish Regulations do 4 main things.

1. Define which premises MUST close
2. Set out the restrictions on people’s movement and gatherings
3. Set out the powers of the Police and others to enforce those sets of restrictions and the penalties for not complying
4. Set the expiry date for the restrictions by defining an ‘emergency period’

Enforced closure of businesses

There is in fact a limited and reasonably well-defined class of businesses and premises that are requiredto close. Broadly there are 4 types of restrictions. During the emergency period;

1. someone operating a business of the specified types must close premises or parts of premises where food and drink are sold for consumption on the premises and stop selling food and drink for consumption on the premises. This covers
   i) restaurants and dining rooms in hotels or private clubs
   ii) cafes, including most workplace canteens, although some workplace canteens may remain open if there is no practical alternative for staff to obtain food AND so far as reasonably possible a separation of 2 metres can be maintained between people using the facility
   iii) bars, including those in hotels and private clubs
   iv) pubs
2. people operating the following businesses must stopdoing so:
   Cinemas; Theatres; Bingo Halls; Concert Halls; Museums and Galleries; [although these five can continue to operate if they are being used for broadcasting internet, TV or radio performances]; Nightclubs; Casinos; Betting Shops; Spas; Hairdressers; Barbers; Nail Salons; Beauty Salons; Massage Parlours; Tattoo and Piercing Parlours; Skating Rinks; Indoor Gyms, Leisure Clubs and Soft Play Facilities; Funfairs; Playgrounds, Sports Facilities and Outdoor Gyms; Outdoor Non-food Markets; Car Showrooms [but not vehicle maintenance garages]; Auction Houses;
3. Other than the specifically exempted businesses [listed below] businesses which sell or hire out goods must cease to operate EXCEPT to the extent that they can continue to fulfil orders received online, by phone or by post, and must shut those parts of their premises not required to fulfil such distance orders. They must not allow people on to the parts of the premises which can remain open unless they are required to allow it to fulfil distance orders.
   The exempted businesses are:
   Food retailers, including convenience stores and corner shops; off licences and shops selling alcohol for consumption off the premises; pharmacies and chemists; newsagents; homeware, building supply and hardware stores; petrol stations; car repair and MOT services; cycle shops; taxi and vehicle hire businesses; banks and building societies; post offices; funeral directors; laundries and dry-cleaners; medical or health services; vets and pet shops; agricultural supply shops; storage and distribution facilities, including collection and drop of points where they form part of premises listed here; car parks.Those exempted businesses must, so far as reasonably possible ensure that the social distancing guidelines are adhered to. This means that businesses should take steps to ensure that people in permitted premises, or waiting to enter, are kept 2 metres apart from other people, except family members or carers.

   d) Businesses providing holiday accommodation, including hotels, hostels, bed and breakfast accommodation, holiday apartments or homes, campsites or caravan parks must close unless they are providing accommodation for people who cannot return home or occupy the accommodation as their main residence or in some other limited situations

Obviously these restrictions cover a wide range of businesses, but it is important to note that it is NOT a blanket ban on operating businesses which do not fall into those categories listed, which are primarily those dealing with the supply of goods and services to the public. Industrial premises maycontinue to operate but should comply with the other restrictions on people’s movement – which will have an impact on staffing. While closure of businesses not listed in the regulations is not compulsory, the Scottish Government advice is that only businesses providing or supporting essential services, or which are capable of maintaining safe social distancing, should close

Restrictions on movement

The regulations set out a blanket ban on people leaving home during the emergency period unless they are doing so for one of the specified reasons, and to do so is a criminal offence. For businesses that means that you must consider whether asking staff to come to work does fall within the excepted reasons. If someone refuses to come in, they may well be entitled to do so.

For businesses, the critical exception is that a person may leave home in order to go to work where it is not reasonably possible to work from home. For many business premises that will not be a difficult decision to make – to take an obvious example, someone who’s work involves the operation of machinery or equipment installed in their workplace isn’t going to be able to do that from home. There will though always be cases where there is a doubt and it is always sensible to seek advice if there is any question.Gatherings of more than two people in a public place, other than those who are members of the same household, are prohibited. There is however an important exception for business that such a gathering is permitted if it is essentialfor work purposes. It is also important to note that gatherings are prohibited ONLY in public places – this would exclude most business premises which are not prohibited from opening.

Enforcement

The police have been given extremely wide powers to enforce the regulations and it is obvious from recent media reports that some police forces have been taking a much narrower view of what is permissible than others. Hopefully the fact that Police Scotland is now one unified force will lead to a consistent approach across Scotland.

It is now a criminal offence to breach any of the restrictions outlined above, to obstruct someone carrying out an enforcement function or to fail to comply with a direction, reasonable instruction or a prohibition notice under the regulations.

Where a company director or a partner in a partnership or anyone with ultimate responsibility for managing a business is found to have directed the carrying out of a prohibited activity or to have allowed it to happen without considering whether it was prohibited – the person is equally guilty of the offence – this means that you can’t hide behind the corporate veil. This is why it is important to take advice before taking a decision – failing to do so could result in a substantial fine.

The powers given to the police and to people designated by local authorities are;

1. To issue a prohibition notice to someone who is believed to be contravening a requirement of the regulations where it is necessary and proportionate to ensure that the person actually complies with the requirements.
2. They can require people to return home and use reasonable force to take them there if necessary.
3. They can disperse gatherings of more than two people in a public place

As noted above, a failure to comply with such an order is an offence unless there is in fact a reasonable excuse for not doing so. If you are given any such a direction it is probably safer to comply with it. If you think it is unreasonable it is safer to seek advice before deciding not to comply.

The police can issue a fixed penalty notice to anyone who they believe has committed one of the offences under the regulations. If you are issued with such a notice it will possible to challenge it in court but that will be time consuming and expensive and we would expect the courts to take a very strict approach as to whether an excuse really was reasonable.

This still leaves some unanswered questions – for example to what extent the police might insist that someone going to work turn round and go home. How are the police to judge whether that person can actually do their job from home? Will an employee have to provide evidence that they were travelling to/from work? Will an employer have to explain to the police why the employee has to come to work? Should an employer expect an unannounced visit from the police? What should an employee do if placed in that situation, bearing in mind the consequences of not complying? What do you do as an employer if faced with that situation?

As we said at the start, these regulations are extraordinary and it is always wise to seek advice from us before doing anything. Not to do so may have serious consequences.

For more information, please contact Robin Millar:

Phone

01383 721621

Email

rm@businesslaw.co.uk