COVID-19 secure guidance for employers, employees and the self-employed 23 June 2020
- 8 1.1 Managing risk
Objective: To reduce risk to the lowest reasonably practicable level by taking preventative measures, in order of priority.
Employers have a duty to reduce workplace risk to the lowest reasonably practicable level by taking preventative measures. Employers must work with any other employers or contractors sharing the workplace so that everybody’s health and safety is protected. In the context of COVID-19 this means protecting the health and safety of your workers and customers by working through these steps in order:
“Duty” and “Must” comprise mandatory language – “do or die”. This is the sort of thing that will be raised if something goes wrong.
“Reasonably practicable” is discretionary language – “ do it if you can”.
Mixing this language gives rise to uncertainty.
It is better to reflect in a risk assessment that discussion was had with other employers / contractors – a key example would be security companies providing door staff.
Bearing in mind the mixed mandatory and discretionary terms above, working through the steps in the Guidance raises issues of concern.
“§ Ensuring both workers and clients who feel unwell stay at home and do not attend the venue.”
How can premises operators “ensure” that a client who felt unwell stayed at home and did not attend the venue in the first place? Operators have control over their workers, and can give orders and protocols in advance of events happening. Operators can provide advice to clients on a website, or at the time of booking, and they can make certain checks on arrival but they cannot ensure that clients stay at home and do not attend the premises. The first that the operator will know about an issue with an unwell client will be when they do attend the premises, or, more likely, after they have left, in a track and trace exercise.
2.1 Keeping customers and visitors safe
Objective: To minimise the risk of transmission and protect the health of customers and visitors in restaurants, pubs, bars and takeaway venues
- Individual businesses or venues should consider the cumulative impact of many venues re-opening in a small area. This means working with local authorities, neighbouring businesses and travel operators to assess this risk and applying additional mitigations.”
This is very challenging for operators. There is no advice on what “working with” means in this context. Businesses have huge pressures to contend with before they open from 4 July, and the prospect of having to consult with neighbouring businesses, local authorities and, most confusingly of all, “travel operators”, before they can complete their risk assessments and open seems unrealistic.
Issues such as cumulative impact, local transport infrastructure and operation, and public facing guidance is the proper remit for the local authorities, not individual businesses, who have neither the resources nor the skills to follow this COVID-19 guidance. If individual businesses reached different conclusions in their risk assessments about the cumulative impact of the numbers of local businesses, there is no obvious mechanism to resolve this. Businesses would not readily reach a conclusion that had a negative impact upon their own operation, to the advantage of one of their competitors, so a conclusion by any business that there was cumulative impact would give rise to impossible questions as to which business would have to sacrifice which element of their recovery to mitigate that cumulative impact for others.
These are not reasonable burdens to place upon the businesses themselves, and are matters for local government decision making, based upon their superior ability to oversee the operation of all businesses together and take proportionate steps to mitigate harm where necessary. There is no doubt that the businesses could be expected to consult cooperatively with others, but they surely cannot take a lead on such issues.
2.1 Keeping customers and visitors safe
[Applying additional mitigations]:
These could include:
- Arranging one-way travel routes between transport hubs and venues.
- Advising patrons to avoid particular forms of transport or routes and to avoid crowded areas when in transit to the venue.
This is Guidance intended for businesses. This section began with: “Individual businesses or venues should consider…” How are individual businesses supposed to control one way travel routes between travel hubs and premises? Or take responsibility for directing visitors to the town or city centre as to what transport routes they should use? As with the comments in Question 2 above, these are issues for the local authorities. Premises can assist in publicising the decisions that the authorities take, but should not be burdened with making those decisions for themselves. They have not go the skills to do so.
What if five different businesses come up with different routes, and different advice to visitors?
- 11 § Local authorities should avoid issuing licenses for events that could lead to larger gatherings forming and provide advice to businesses on how to manage events of this type.
It is very regrettable that such serious and important Guidance does not spell its key terms correctly.
The meaning of “licences for events” is not clear. We license people, (personal licence) and we license premises. We do not license “events” as such. There is no obvious point in time being identified in the Guidance that would result in a licence application being made: most businesses receiving this Guidance will have licences already, and are being instructed in how to take advantage of default Government extensions.
In the circumstances of a new licence application, there is no obvious way that a licensing authority would know at the time of application whether an event would lead to large gatherings forming. On the basis of the law as it is anticipated to be a “large gathering” means over 30 people: a level which is currently outlawed in any event, licensed or otherwise.
The term “avoid issuing licences” is wholly unclear. The licensing authorities have no option, and indeed are under a duty under the Licensing Act 2003 to grant premises licence applications ( which would be for “events” for the purposes of this Guidance) if there are no relevant representations made about an application. If there are relevant representations, the licensing authority is under a duty to consider those at a hearing. They then have well-worn requirements to follow in deciding whether to grant, or refuse applications, and they must give reasons. There is no room within this established legal procedure to “avoid issuing licences”.
“Issuing” is usually a term associated with sending licence as granted to a licensee, and is misplaced in the context of this Guidance. In the same sentence, the LA is exhorted to refuse ( “avoid issuing”) the licence and to advise the business on how to manage it.
On a face-value reading, this Guidance is actually unlawful. This is a regrettable paragraph.