While there is much guidance, assessing risk is not optional
WHEN lockdown was imposed at the end of March, Scottish Government regulations imposed extraordinary restrictions on civil liberties, the likes of which we hope never to see again.
In the interval, those regulations (“the restrictions regulations”) – amended on eight occasions – have on many occasions been misunderstood or misapplied by enforcement authorities.
They’ve also been confused with the separate rules applying to England only; and “guidance” has been misrepresented as the law. For example, there were persistent reports that some police officers were taking their own view on what shoppers were allowed to purchase and a failure to buy groceries along with alcohol might result in the issue of a fixed penalty notice.
So, when hospitality outlets were allowed to reopen last month and the minimum physical distancing was reduced to one metre, it was pretty much inevitable that some agencies would devise their own “law”.
In the past few weeks I’ve come across numerous instances of operators being told, without any lawful basis, that certain activities were “not allowed”.
These interventions either contradicted the advice set out in the Scottish Government’s sector guidance for hospitality and tourism, sought to prohibit certain permitted activities or simply invented additional requirements.
Lines of responsibility are also apt to be blurred, with some licensing standards officers taking on a “public health” compliance role which properly lies within the remit of environmental health departments.
I fear that licensed businesses will have to live with this unsatisfactory state of affairs for some time to come, which is all the harder to bear since the vast majority of operators are going the extra mile to ensure that customers are entering the safest possible environment.
But where an official visit threatens significant business interruption, speak to your lawyer who may well be able to achieve a resolution.
There’s one responsibility falling upon the trade – flagged in the Scottish Government guidance – that may not be receiving the attention it requires.
There may be a whole raft of public health measures a business may consider implementing – but the preparation of a risk assessment isn’t an optional extra.
Under the Health and Safety at Work Act 1974, employers are under a duty to conduct their business so as to ensure, so far as reasonably practicable, the health and safety of (a) employees; and (b) persons not in employment.
With those objectives in view, regulations made under that Act require “a suitable and sufficient” assessment of the health and safety risks to which those categories of persons are exposed.
Plainly, the arrival of the pandemic takes risk assessments to a new level; in fact, it’s not going too far to say that they have potential life and death consequences.
Assessments needn’t be reduced to writing if you have fewer than five employees but it would be foolish not to do so.
A prosecution under health and safety legislation is possible where no actual injury has been sustained: what’s crucial is whether “reasonably practicable steps” have been taken to mitigate the risk of exposure to COVID-19.
So, being able to demonstrate that you have given careful thought to transmission issues – and kept the assessment up-to-date in the light of any emerging information about transmission risks.
Make sure that your staff are involved in the process, as well as contractors, security staff, cleaners and any other persons using your premises who are exposed to risk.
The Scottish Government’s guidance is accompanied by a checklist, while the Health and Safety Executive website has COVID-19 specific advice on risk management.
Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.
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