02 April 2020

Since the last edition of BTOverview our working and private lives have changed almost beyond recognition. Indeed, this article is being drafted not from my office desk but from my kitchen table whilst my wife tries to persuade me that “When you think about it this is the ideal time for us to get a dog...” – at least she is consistent.

Another area in which consistency is required is in businesses’ compliance with their obligations under existing health and safety law whilst having particular regard to the challenges posed by Covid-19. It is the duty of every employer, so far as is reasonably practicable: to ensure the health, safety and welfare of their employees; and to ensure that other people (such as members of the public) are not exposed to risks as a result of their activities.

Employers (and indeed self-employed persons) must also make suitable and sufficient assessment of risks to health and safety to which employees and others are exposed as a result of those activities. Where a business has more than 5 employees, any risk assessment must be in writing. In the current climate, employers and self-employed persons must include an assessment of the risk posed by Covid-19 – even if simply to evidence that it does not present a risk as a consequence of their activities. Particular regard should be had to provision of PPE and welfare facilities.

Additionally, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 came into force on 27 March - the day they were laid before the Scottish Parliament – and creates new offences for failure to comply with the restrictions imposed by the Regulations to reduce the public health risks posed by the spread of Covid-19. Those offences include:

• Individuals leaving their homes without ‘reasonable excuse’ (non-exhaustive list provided in the Regulations, but including essential work which cannot be done from home);
• Failure to close specified premises or businesses (including: restaurants, cinemas, gyms – with some exceptions relating to use for broadcasting services); and
• Failure to observe requirements for continuation of specified businesses (including: food retailers, garages, storage and distribution facilities and agricultural supply shops).

Offences under the 2020 Regulations can be committed by individuals and bodies corporate where the offence arises as a result of the consent, connivance or neglect of any of its officers. Penalties are financial up to the statutory maximum (currently £10,000). Assuming the Crown satisfy requirements for proof, a defence of ‘reasonable excuse’ is available to accused individuals and organisations.

The Regulations will be reviewed every 21 days (for up to 6 months) and so it is important that businesses keep up to date with the latest restrictions, to avoid unintentionally committing an offence in circumstances where the statutory defence will not be available.

In addition to the new statutory offences, it is entirely conceivable that certain conduct could see individuals prosecuted under the common law offence of culpable and reckless conduct - deliberate conduct that exposes an individual, or the public generally, to significant risk to life or health. In the most serious instances, this offence may be tried before a jury and can result in sentences of imprisonment.

In uncertain times BTO’s expert Regulatory and Criminal Defence team can provide you with reliable proactive advice to ensure your business operations are in compliance with existing and emerging law; and in defending any criminal proceedings raised for alleged contraventions.

Vikki Watt, Partner & Solicitor Advocate: vwa@bto.co.uk / 0141 221 8012