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However, as with all things to do with the pandemic, the devil is in the detail and there are caveats attached.
In removing the regulatory approach to staying Covid-secure, the Government is putting the onus on businesses and individuals to ‘learn to live’ with the virus. We are all acutely aware of the current surge in infections and a (smaller) surge in hospitalisations, which will only make matters more difficult. In particular vulnerable groups are very concerned about the step 4 relaxations, especially those who have not or feel they cannot be vaccinated.
Businesses have duties to their customers and staff to protect and safeguard them as far as practicable and the onus will be on operators to ensure that risk assessments are robust enough to anticipate problems that will come with ‘opening up’.
Let’s start with the positives. From Monday 19 July:
‘Working Safely’ guidance will be updated shortly to provide ‘examples of sensible precautions’ that employers can take to reduce risk in their workplaces. It will be expected that this will cross over into customer behaviour too, given that one cannot be disassociated from the other in hospitality venues. Employers will be expected to take account of this guidance in preparing the risk assessments they are already required to make under pre-pandemic health and safety rules. This will include:
In addition, businesses must not require a self-isolating worker to come to work and should make sure that workers and customers who feel unwell do not attend the setting. There will also be a requirement to consider the risks of close contact with others, particularly the clinically extremely vulnerable or not yet fully vaccinated.
Experience has been that some hospitality venues have struggled with customers refusing to wear facemasks and claiming exemptions under the current regulated regime. This has been especially problematic where officers have insisted that staff must challenge anyone claiming an exemption to prove it, despite the official guidance at the time stating the contrary. One can expect therefore that some officers could ask to see what measures are being put in place and challenging staff and management to ensure they are followed even where there is no force of law behind the proposals.
Measures such as asking customers to sign in or use track and trace, wear masks or retaining table service for instance, may receive push back from some customers. With no backing of the law, it will be down to each premises operator to work out where to draw the line between ensuring customer and staff feel safe in the premises, as well as protected from confrontation with intransigent customers. The question then becomes what action could be expected against premises - should such conflict require the involvement of regulatory services? One can only hope that officers will understand the difficult situation operators are being placed in with ‘self-policing’ their own policies and act accordingly.
Likewise, the Government is still pushing the message of ‘outside where possible’, which for some has directly led to confrontations and issues with neighbours. With the removal of the Regulations, this message may find little sympathy with neighbours or enforcement officers. Therefore for those business keen to push activities back inside to reset relations with their neighbours, may find that they are between a rock and a hard place. For some, it will be a struggle to ensure proper ventilation in premises where conditions require windows and doors to be shut, for instance. Thought needs to be given to how the balance is properly struck in such situations.
What is not yet clear is how all of this will be interpreted by enforcement officers on the ground. We have already seen that some police forces and licensing authorities have taken a very robust line on Covid breaches, with premises licence reviews being brought and some premises losing their licences altogether. Whilst it may no longer be ‘crime’ not to have a proper risk assessment and implement Covid-secure measures, the ‘public safety’ licensing objective may still be cited as a reason to bring action against a licence holder if officers decide there is not mitigation leading to an increased risk of outbreaks.
How this all plays out will depend, in part, on Government messaging. Kit Malthouse’s letter to chairs of Licensing Committees across England and Wales early in the pandemic last year assisted in setting out Government expectations for officers to work with businesses and something similar would be a positive start- especially for those businesses opening for the first time in over a year.
We all wait to see how ‘self-governing’ works in practice.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions
15 July 2021