‘Freedom Day’ and the outsourcing of responsibility – hospitality and leisure sector

Today, stage four of the UK Government’s roadmap has been reached, resulting in all legal restrictions and requirements to socially distance coming to an end.

What was billed by Boris Johnson as ‘Freedom Day’, has been reported as shifting the burden of managing the COVID-19 risk from Government to businesses, who are left having to interpret the latest guidance. Many within the scientific community would have advocated for a more gradual relaxation of the rules, with more than 1,200 scientists backing a letter in The Lancet describing the Government’s approach as an “unethical experiment”. As has been seen in the Netherlands, following the removal of most restrictions on 26 June, infections quickly escalated such that the Dutch Government was forced by 10 July to reintroduce some measures. It is noticeable that UK Government rhetoric is shifting with Jeremy Hunt, now Chairman of the Commons Health and Social Care Committee, suggesting that new restrictions may need to be introduced in the autumn.

Mixed messages for businesses

Interpreting the Government’s guidance creates the obvious difficulty that each business may interpret and implement the information slightly differently.

For leisure and hospitality businesses, updated guidance was published on 14 July, referring to COVID-19 as a “workplace hazard” with the need to complete suitable risk assessments, in order to identify and then appropriately manage the risk. Those who do not do so, may be considered to be breaching health and safety law. The guidance includes advice to:

  • Provide adequate ventilation within venues
  • Turn people away with COVID-19 symptoms
  • Enable people to check in at the venue
  • Clean more often
  • Communicate with and train staff.

Operators are encouraged to use outside spaces, as the legal requirements to wear face coverings are removed, and businesses in higher risk settings, such as nightclubs, are recommended to use the NHS COVID Pass as a condition of entry, in large crowded settings, where people will be in close proximity. This, however, creates difficulties. If for example, a business refuses entry to an individual on the basis that they cannot prove their vaccination status, referred by some as “no jab no entry”, then they run the risk of claims being brought under the Equality Act 2010, if they are found to have discriminated against an individual because of a protected characteristic (such as a disability) without objective justification.

Increased pressures

With the Government’s furlough scheme coming to an end, businesses have an even greater pressure to ensure their business is financially viable which in turn, creates a demand to maximise customer numbers within venues. This could result in more members of staff working in closer proximity in kitchen areas and the removal of table service, which is no longer mandatory, but which is more labour intensive.

There are also concerns that with all legal requirements removed, this will further fuel the spread of the Delta variant; on 16 July, 51,870 people in the UK tested positive, within nearly 280,000 infections over the last seven days. In the last week, more than 500,000 alerts telling people to self-isolate have been sent, an increase of 46% on the previous week.

Further, with a reduction in workers seeking employment in the leisure and hospitality sector as a consequence of Brexit, and workers during the pandemic finding jobs in other sectors, businesses risk swathes of people having to self-isolate or needing to take time off sick. This will inevitably create additional pressures on businesses to ensure there are sufficient workers to implement their COVID-19 procedures, along with other more general health and safety policies. This increases the likelihood of other accidents and claims then following because procedures have not been followed.

‘Freedom Day’ and beyond – considerations for businesses

Whilst those operating within the sector will welcome the ability to return to more normal trading conditions, the challenges brought by ‘Freedom Day’ are significant. As such, the following factors should be given priority:

  • Ensure suitable and sufficient risk assessments are conducted and documented - these should also be communicated to staff to give comfort that the working environment is not putting them in unreasonable danger (and also give the employer protection from potential Employment Tribunal litigation brought by staff who are disciplined or dismissed for unreasonably refusing to return to the workplace);
  • Operators should continue to monitor and apply health surveillance to employees in the same way as has been carried out during the pandemic;
  • Whatever measures are left in place, ensure that they are applied consistently to all customers to minimise the risk of discrimination claims being pursued;
  • Consider whether evidence of a recent negative lateral flow test would be preferable when considering the COVID-19 status of individuals, rather than whether or not they have been vaccinated;
  • Ensure that other non COVID-19 health and safety policies and procedures are followed to mitigate the risk of accidents occurring;
  • Ensure that staff training is up to date, refresher training given as necessary and that this is documented.

Comment

Whilst we now have our freedom, the sober reality is that the next phase is likely to be particularly challenging until more of the population has been double-vaccinated, and we have passed the peak of the current wave. Further, in light of the shift in responsibility of managing COVID-19 risk from Government to businesses, operators within the hospitality and leisure sector should be alive to and ensure they are up-to-date with Government guidance, laws and regulations to protect customers, employees and minimise the risk of claims. For those who fail to do so, legal action could await in addition to irreversible reputational damage.

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