The majority of legal restrictions in place due to coronavirus ended in England on 19 July 2021, as England proceeded to step 4 of the roadmap from that date.
As public health is a devolved matter, the timetable for the easing of restrictions has differed in the rest of the UK. Separate guidance applies in Scotland, Wales (where there is a specific statutory duty for businesses to assess the risks of COVID-19 and take “reasonable measures”) and Northern Ireland.
This article is intended to serve as general guidance only and does not constitute legal advice. FSB members should contact our 24/7 legal advice line before taking any action.
What does this mean for my business?
At step 4 (which has applied in England since 19 July 2021), the Government has removed outstanding legal restrictions on social contact, life events, and opened the remaining closed settings. The focus has shifted from law making towards individual and corporate responsibility for taking steps to control the spread of COVID-19. The Government has instead issued guidance, which is not law, for both individuals and businesses on how they can help reduce the spread of COVID-19.
Where can I find the guidance?
This guidance was updated on 11 August 2021. The guidance set out in this set of FAQs is based on the government’s announcements for step 4 of the roadmap and the six government sector guides for businesses on ‘Working Safely during coronavirus (Covid-19): Guidance from Step 4’.
Where can I find guidance as an employer?
As an FSB member, you can access coronavirus guidance for employers in the employment section of the FSB Legal Hub in our ‘Coronavirus health and safety guidance for employers’ fact sheet and our fact sheet on ‘The removal of coronavirus in England: FAQs for employers’.
Further guidance is available on FSB's Recovery Ready hub.
Do I still need to ask customers to ‘check in’ for NHS Test and Trace?
No. The Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020 which came into force in England on 18 September 2020 were revoked in England on 19 July 2021.
These Regulations previously required establishments in England in certain sectors to collect details and maintain records of customers and visitors to their premises for 21 days to assist NHS Test and Trace and fixed penalties for those that failed to do so.
There is no longer a legal requirement in England for any businesses or establishments to collect customer or employee details for NHS Test and Trace or to display official NHS ‘QR Code’ posters at their premises.
However, employers and businesses are still encouraged to do so in order to support NHS Test and Trace. Government guidance on supporting NHS Test and Trace states that establishments in the following sectors should encourage attendees to check in and maintain records of staff, customers and visitors who choose to provide their contact details:
- hospitality, including pubs, bars, nightclubs, restaurants and cafes
- tourism and leisure, including theatres, museums and cinemas
- close contact services
- places of worship
- facilities provided by local authorities such as libraries and community centres
In the event of an outbreak linked to a venue, individuals who checked in will receive a venue alert. This is a notification from their NHS COVID-19 app if they scanned the NHS QR code, or a text message if they provided their contact number.
Can I still require customers to wear a face covering?
Yes. The previous statutory requirement to wear a face covering in some settings (such as shops) was lifted from 19 July 2021 in England. This means that there is no longer a statutory requirement for anyone in England to wear a face covering in any situation. However, businesses may decide to continue to require face coverings to be worn on their own premises.
FSB has been campaigning to highlight that a “house rules” approach is now in effect in England. Although most COVID-19 legal restrictions are no longer in place in England, small business owners can make decisions on how to run their own businesses and premises. This may include deciding to make face coverings compulsory on their premises, for example. The key is to make sure decisions are made in the right way – for example a small business owner can have a policy that insists on a face covering on its premises, as long as they have taken into account equalities legislation under the Equality Act 2010, which also applies to service providers, and the need to make provision for those who cannot wear a face covering.
Businesses must complete a risk assessment, and take reasonable steps to manage risks to the health and safety of their customers in their setting, including the risks of COVID-19. Measures identified by the risk assessment may include the requirement to wear face coverings.
The Government has stated that it “expects and recommends” that people continue to wear a face covering in crowded, enclosed spaces to help reduce the risk of the spread of COVID-19. Updated Working Safely guidance for step 4 encourages the use of face coverings by workers or customers in enclosed and crowded public spaces.
The Working Safely guidance for step 4 states that in close contact services (such as hairdressing), having considered the risk of COVID-19, businesses may decide to continue to ask their clients or staff to wear a face covering, especially where practitioners are conducting treatments which require them to be in close proximity to a person’s face, mouth and nose. The requirement for face coverings to be worn will be a matter for the business’s own assessment.
Where businesses require their workers or customers to wear a face covering, under equalities legislation, employers and businesses will need to consider the reasonable adjustments needed for staff and clients with disabilities who may not be able to wear a face covering including where a disability may not be visible to others, or where the use of a face covering may make it harder to communicate with people who rely on lip reading, facial expressions and clear sound.
Government guidance states that where individuals have an age, health or disability reason for not wearing a face covering they do not need to show any written evidence of this, or an exemption card. Customers should not be refused access to the premises where they are unable to wear a face covering for this reason.
What if customers refuse to wear a face covering?
Provided that the customer is not refusing to wear a face covering due to a health or disability reason, the business would be permitted to refuse entry to the customer for failing to comply with their requirement for face coverings to be worn on the premises. The business should make this requirement clear before the customer enters the premises through appropriate signage.
FSB members can find in-depth guidance on the FSB Legal Hub or contact our 24/7 legal advice line for support.
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