The Public Health Regulations (up-dated as at 29 June 2020)

Key Changes as at 29 June 2020

Social: People can now meet, in public places, people from 2 other households. Playparks and outdoor sports courts can now open and marriage ceremonies can take place (provided that only members of 3 different households (plus the celebrant) are in attendance). Places of worship can now open for the purposes of prayer.

Moving Home: People can now view properties with a view to purchase or rental and activities associated with renting or the purchase of properties (e.g. valuation surveys) can now take place. You also have an excuse for a gathering of people where such gathering is to facilitate a house move. If you have a second home, you can now visit that house for the purposes of checking that it is secure.

Business: “Non-essential” shops can now re-open (including car showrooms and betting shops). It is now possible for accommodation providers to provide accommodation to people who require accommodation for work purposes.

Face coverings: As of 19 June, it is now mandatory to wear a face covering when traveling on public transport.

The Regulations

The Health Protection Regulations (Coronavirus) (Restrictions) Scotland Regulations (Regulations) originally came into force on the evening of 26 March 2020. The Regulations give effect to Schedule 19 of the Coronavirus Act.

The Regulations provide the statutory footing for the current “lockdown” arrangements. The restrictions and requirements imposed by the Regulations are open to review at least once every 21 days.

Some further amendments to the original Regulations were brought in to force on 19 and 29 June 2020.

Closure of certain businesses

The Regulations require that businesses such as restaurants, bars, cafes, night clubs, cinemas and theatres remain closed. As of 29 June, however, most shops can now re-open.

A business that provides accommodation services (a hotel or hostel etc.) should also largely remain closed but may provide accommodation to any person who:

a) is unable to return to their main residence;
b) uses that accommodation as their main residence;
c) needs accommodation whilst moving house;
d) needs accommodation to attend a funeral; or
e) needs accommodation whilst travelling for work.

They may also provide accommodation to the homeless, to host blood donation sessions or for any purpose requested by the Scottish Ministers or a local authority. In such circumstances, those businesses can serve food and drink as part of room service.

From 29 May, all businesses can now open premises to personnel and external contractors for the purposes of carrying out preparatory works in anticipation of opening to the public at some point in the future. This would allow work to be carried out to install 2 metre markings and screens at counters for example.

Duties on businesses continuing to operate

All businesses (if they do not have to close completely under the Regulations) must comply with certain obligations set out in Regulation 4. These are that all reasonable measures are taken to ensure that a distance of 2m is maintained between any person on the premises or waiting to enter the premises; and to ensure that the person only admits people to its premises in small numbers to ensure it is possible to maintain that distance.

A person responsible includes the owner, proprietor, and manager of that business. Reasonable measures are not defined in the Regulations however some supermarket businesses have started to outline the 2m distance using floor markings in certain parts of the stores, e.g. at checkouts. Notices to customers to maintain the requisite distance and staff members at doors limiting the number of persons entering may also be sensible.

Moving home

It is now possible (as of 29 June) for people to leave their current homes to view potential new homes (for rent or purchase). It is also now possible for other activities related to the renting or purchase / sale of properties (such as valuation surveys) to take place. Moreover, it is an allowed exception to the general bar on gatherings where such gathering is for the purposes of facilitating a house move. Moving home is now possible even when it is not “reasonably necessary”.

What restrictions apply to person’s movement?

Unless the person has a defence under the Regulations, it is unlawful for a person to leave the place where they are living unless they have a reasonable excuse. The Regulations set out a list of possible reasonable excuses including leaving to obtain supplies, for the purposes of exercise or to go to work (where working from home is not possible).

As of 19 June 2020, it is compulsory for any person traveling on public transport to wear a face covering (subject to certain limited exceptions).

What penalties may apply?

A constable may issue a fixed penalty notice to anyone over 16 years old and who is reasonably believed by the constable to have committed an offence under the Regulations. The fixed penalty payable is increased on a person’s second and third offences under the Regulations.

What should clients do?

Clients who continue to operate businesses during the period of restriction will need to keep in mind the provisions and restrictions that will apply under the Regulations.

As well as maintaining the 2m rule in their premises, it would be sensible for employers to ensure that staff carry with them proof of employment that can be exhibited to a constable if stopped outside of work or home. A letter headed ‘to whom it may concern’ type letter from the employer vouching the employee’s employment or requirement to be outside would be a good idea.

Staff undertaking deliveries, should similarly ensure that they keep on their person any customer orders, delivery schedule or similar document. Employers who now find themselves operating ad hoc delivery services should ensure that staff have the appropriate vehicle insurance to do so. Note that measures should also be taken to ensure social distancing within vehicles if that vehicle is to be occupied by more than one person.

As lockdown eases and more businesses open up, it is worth employers noting that the Health & Safety Executive have made it clear that where an employee contracts Covid-19 as a result of their work, this would be a notifiable event under RIDDOR. It may well be difficult to establish that an infection arose as a consequence of exposure at work (rather than when the employee was away from their workplace) but the HSE’s position is an added incentive upon employers to take reasonable measures to protect the health of their employees.

Wright, Johnston & Mackenzie LLP are able to advise businesses or individuals on the terms of the Regulations and other concerns arising from the Covid-19 outbreak.