Businesses don’t have a choice about imposing social distancing and other Coronavirus measures.
Subject to consideration of health and safety risk assessments as mentioned below, businesses can choose to impose some, all possible or no social distancing measures at all.
They can offer dual service provision, directing those worried about Coronavirus to the left and those who are not to the right. They can charge higher prices to consumers who want social distancing and other Coronavirus ‘safety’ measures. They can offer lower prices and ‘fast passes’ and no queues for those who do not.
This is the common law position in England and Wales. It remains the law in England for the moment and unenforceable guidance won’t change that.
H&S risk assessments
The government and Health and Safety Executive (HSE) repeatedly emphasis that it is for individual businesses to assess risks danger in their business. The HSE Coronavirus risk assessment is purely about risk of transmission of the Coronavirus. It does not address the fundamental issue of danger. Risk of transmission of a common cold or flu virus may be high, but the risk of significant danger to the staff is extremely small.
It is open for a business to make its own assessment the risk of danger from Coronavirus in the business, taking into account exposure outside the business and balancing the dangers arising from measures the government guidance proposes. This is explained in more detail in our post Risk assessments: an important chink in the lockdown armour.
The central issue over the worth, or currently in up and down the land, the worthlessness of Covid-19 risk assessments, is also key to the issue of whether face coverings should be worn by employees.
Wales is rather more complicated, principally because in contrast to the non-compulsory guidance in England, 2-metre social distancing and guidance have been given the force of being legal requirement rather than simply a request.
A technical observation re disability issues
In both England and Wales, there might, arguably, be some potential for some objection under the Equality Act 2010 from people with disabilities that they may be excluded from being served as a result of such practices. However, businesses need not be overly concerned about this and have greater reason to be concerned about discrimination arising from the imposition of government guidance. Business are, of course, quite capable of considering and offering exemptions for anyone bringing to their attention any particular or general disadvantage suffered and must do so. If that shouldn’t address the issue, discrimination claims (if any) can be defended on as justified, principally in that the business needs the income of more people in order to survive or be reasonably profitable and, perhaps, even to provide a normal service to avoid wider discrimination and harm to others. (There are further real and technical defences beyond the scope of this article.)
Our articles on face covering deal in more detail.
Warning: Law and circumstances can change very quickly. Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.