The Public Health Regulations (up-dated as at 29 May 2020)
2nd June 2020
Key Changes as at 29 May 2020
General: Businesses that would otherwise require to be closed under the regulations can now re-open to the extent necessary to allow preparatory steps to be taken. This essentially means that premises can now be accessed by staff or external contractors with a view to setting out 2 metre markings and erecting screens etc.
Gatherings: Previously, it was not permitted to participate in a gathering in a public place of more than 2 people except where all the persons gathering were members of the same household. That general restriction remains in place except that now members of two households can now gather together. Crucially, however, any such gatherings with another household must take place outside.
Sport: Outdoor tennis and bowls courts can now open (but note, the operators of such courts will need to take all reasonable measures to ensure 2 metre distancing between users).
Garden Centres and Plant Nurseries: Garden centres and plant nurseries have now been added to the list of businesses that can open. Those businesses are, however, subject to the obligation to take all reasonable measures to ensure 2 metre distancing between people.
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. An emergency period has commenced and will end when any restriction or requirement imposed by the Regulations is terminated by the Minsters. The restrictions and requirements imposed by the Regulations are open to review at least once every 21 days.
As a result of the first review of the Regulations, some further minor amendments to the original Regulations were brought in to force on 29 May 2020.
Closure of certain businesses
The Regulations require that during the emergency period certain businesses must close or cease certain activity (e.g. selling food or drink for consumption on the premises). Those businesses include (but the list is longer) restaurants, cafes, bars and pubs; cinemas, theatres, casinos, skating rinks, gyms and car showrooms.
A business that provides accommodation services (a hotel or hostel etc.) 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; or
d) needs accommodation to attend a funeral.
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, 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 measure 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.
Delivery based businesses are permitted to continue operations but must close those parts of their premises that are not required as part of the delivery service (except to the extent access is required to carry out preparatory works).
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.
What defence may be open to a person leaving their house?
The defences are outlined in the Regulations. They include (the list is longer) leaving to: obtain basic necessities and supplies; exercise; travel for the purposes of work (but only where it is not possible to work from home); attend a funeral of a close family member; and move home where reasonably necessary.
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.
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. Please call 0141 248 3434 or email firstname.lastname@example.org
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