IGA News

Be Aware - October 2020

Be Aware - October 2020

30 September 2020

QR Code posters and contact logs

On Friday 18 September, the UK Government produced Regulations requiring designated businesses and organisations, including hospitality, close contact services and leisure venues, to log details of customers, visitors and staff for NHS Test and Trace; and from Thursday 24 September to display official NHS QR code posters under law, ahead of the NHS COVID-19 app being rolled out.

For those of you who are unaware, a QR code is in effect a 2-dimensional bar code that is readable by electronic devices including smartphones.

Whilst any business can choose to display a QR code, the Regulations only require ‘relevant premises’ as defined by the Regulations to do so. The good news for RMI members is that they are very unlikely to be affected by these Regulations.

The Regulations list the ‘relevant premises’ in some detail but generally these are premises in which food is consumed; leisure and tourism services; and businesses that require close physical contact, such as barbers and beauticians.

However, the NHS website states that ‘You should create and display a QR code if you are a business with a physical location that is open to the public’, so it would be good practise to implement this service.

The full list of designated premises can be found at:

www.legislation.gov.uk/uksi/2020/1005/schedule/made

Further government guidance on this can be found at:

www.gov.uk/government/news/venues-required-to-enforce-rule-of-6-nhs-qr-code-posters-and-contact-logs

Any businesses wishing to register and produce an NHS QR code can do so at:

www.gov.uk/create-coronavirus-qr-poster

COVID-Secure Standards

The Government has also stated that all businesses and organisations will face stricter rules to make their premises COVID-Secure as of 28 September.

It is not currently clear how this will be defined. However, the Government has produced guidance which can be found at:

assets.publishing.service.gov.uk/media/5eb9703de90e07082fa57ce0/working-safely-during-covid-19-shops-branches-200910.pdf

Further guidance, including templates and resources have been produced by the HSE which can be found at:

www.hse.gov.uk/coronavirus/working-safely/index.htm

Face Coverings

Of more pressing concern are the changes regarding the wearing of facemasks. The Government announced that staff in hospitality and retail will now be required to wear face coverings from 24 September.

Whilst we are yet to have the full text of any changes to the current legislation, previous definitions of retail premises used during the Coronavirus pandemic have made reference to the premises being open to members of the public for the sale of goods and services.

We do note that the requirement is for face coverings, therefore where staff are uncomfortable with wearing a facemask, then face shields are a legitimate alternative.

Whilst we can understand members’ concerns and confusion regarding whether they are retail premises in other legal situations such planning etc, it is our current opinion that all staff who meet customers face to face will be required to wear a face covering (i.e. a facemask or face shield), unless one of the current exemptions applies to them.

The announcement did not change the current position within the workplace generally. Where there are areas of the business to which members of the public do not have access, then the guidance remains:

  • Work from home where possible
  • Maintain a 2 metre social distance between employees
  • Where not possible, a 1 metre plus distance with additional protections (i.e. face coverings etc)

The following Q&A relates to England. For guidance on Scotland and Wales, please click here.

What is the requirement at law?

“No person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering” (s3(1) The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020)

What is a reasonable excuse?

A person has a reasonable excuse if

  • They cannot put on, wear or remove a face covering—
    • because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010(6)), or
    • without severe distress;
  • They are accompanying, or providing assistance to, another person who relies on lip reading to communicate;
  • They remove their face covering to avoid harm or injury, or the risk of harm or injury, to themselves or others;
  • They are entering or within a relevant place to avoid injury, or to escape a risk of harm, and do not have a face covering with them;
  • It is reasonably necessary for them to eat or drink, and they remove their face covering to eat or drink;
  • They have to remove their face covering to take medication;
  • They are required by a person responsible for a relevant place or their employee acting in the course of their employment, to remove their face covering in order to verify their identity;
  • They are asked within a pharmacy to remove their face covering in order to assist in the provision of healthcare or healthcare advice;
  • They are asked by a relevant person to remove their face covering.

Is a garage a ‘retail’ business/do my staff need to wear a face covering?

Whilst government guidance makes reference to ‘retail’ businesses, the legislation refers to a ‘relevant place’. Whilst there are a few specific places (i.e. post offices, theatres, etc, etc…) the legislation includes ‘a shop’. Whilst this is not a very precise definition, if your premises are open to the public for the sale of goods or provision of services, then our advice is that you are a shop for the purposes of the legislation and your staff are required to wear a face covering.

Do my staff have to wear face coverings if they work behind a screen?

This is actually quite difficult. The Regulations state that;

“No person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering.”

That Said Government guidance produced 24 September states that:

If businesses have taken steps to create a physical barrier or screen between workers and members of the public then staff behind the barrier or screen will not be required to wear a face covering. Enforcement action can be taken if barriers and screens are in place which do not adequately mitigate risks.

Whilst there is the argument that a screen would create a separate ‘relevant place’ and therefore if not open to the public the Regulations would not apply, it will depend on how substantial any screen is. If it is truly floor to ceiling and fully enclosed, this is possible.

It is our opinion that, a strict interpretation of the Regulations require masks to be worn even with a screen. However, due to the government guides where the screens are substantial then the likelihood of prosecution for not wearing a mask is slim.

Do my staff have to wear face coverings if there are no customers?

The Regulations make reference to ‘enter(ing) or remain(ing) within a relevant place’. There is no reference to the number of people within a relevant place. As such, where staff remain within a shop whether there are other people present or not, face coverings are required.

What is a face covering?

The Regulation define a face covering as, ‘any type which covers a person’s nose and mouth’ .

Any face covering MUST cover a person’s mouth and nose. If a face covering is worn incorrectly over the mouth only (of on the chin as has been seen) then this will not comply with the regulations and the wearer may be subject to a fixed penalty notice.

It should also be noted that anything that covers the nose and mouth would suffice. Whilst a mask is strongly advised, where staff have difficulty with wearing masks then a face shield may suffice if worn correctly.

What if my staff refuse?

Whether staff are legally required to wear face coverings or not, provided there are no medical reasons against wearing a face covering, or reasonable excuses as per the legislation, it is likely that requiring staff to wear a face covering will be a reasonable request and in line with health and safety legislation. As such, any refusal to wear a face covering will be a disciplinary matter.

We would advise that Members first deal with any incidents on an informal basis. It will first be necessary to ascertain the reasons why a face covering is not being worn. If there are no medical reasons against wearing a face covering, or reasonable excuses as per the legislation, then verbal warnings should be considered. These can then be escalated as appropriate through the usual disciplinary process.

Investigations and unfair dismissal

A key element in any fair dismissal of an employee with over 2 years’ service is that the employer must follow a fair procedure and conduct a reasonable investigation into any allegations, especially where misconduct is alleged Such an investigation includes gathering all relevant evidence that it is reasonable to investigate. The investigation does not have to be perfect, but within a band of reasonable investigations that another employer could have undertaken in the circumstances. The extent and depth of the investigation also clearly depends upon the seriousness of the matters being investigated.

In the case below the Employment Appeal Tribunal (EAT) supported an employer when it failed to take some evidence from potential witnesses. It concluded that the employer was reasonable in excluding such evidence, under circumstances where the excluded evidence could not have really changed the employer’s view.

In Hargreaves v Manchester Grammar, Mr Hargreaves was a teacher with an unblemished record until it was alleged that he had grabbed a pupil, pushing him against the wall and putting his fingers to the pupil’s throat. He was dismissed. The tribunal found the dismissal fair. Mr Hargreaves appealed to the EAT, contending the employer’s investigation was inadequate, given the career-changing impact of the allegation. Also, the employer had failed to disclose to the disciplinary panel evidence from potential witnesses who had said they had seen nothing.

The EAT dismissed the appeal. The tribunal had correctly directed itself as to the higher standard of investigation that might be expected, given the very serious nature of the allegation. It was within the band of reasonable responses to decide not to put forward to Mr Hargreaves and the disciplinary panel details about interviews with those who had seen nothing. It did not follow that, because those individuals had seen nothing, nothing had happened. The tribunal permissibly concluded the employer had reasonably formed the view that the excluded evidence was immaterial and could not assist.

The tribunal was entitled to conclude the employer had conducted a fair investigation and that the dismissal was not unfair.

Comment

The above case shows there is some degree of latitude for employers in such matters however employers should generally be careful to investigate with all potentially relevant witnesses and that remains the safest option. Employers must remember that, in any investigation, they are looking for all the evidence (not only evidence that supports the charges against the employee).

CMA guidance on Refunds and Cancellations

The Competition and Markets Authority (CMA) provided guidance to businesses on 30 April 2020 on how they should act during the Covid-19 pandemic to ensure compliance with consumer legislation. Included in this was guidance on refund, complaints and cancellations.

Their report showed that 4 out of 5 complaints since the outbreak began in March related to cancellations and refunds.

CMA guidance on refunds stated that a business should issue full refunds where due to lockdown restrictions

  • It has cancelled the contract without providing the goods/services
  • No service has been provided by the business or
  • The consumer cancels or is prevented from receiving the service

Refunds should not be subject to administration fees and should be made within a reasonable time. Businesses can require a small contribution towards costs until the service is resumed provided the contribution is clearly outlined in any contract for the goods/services.

The guidance mentions that as an alternative to refunds consumers can be offered credit vouchers or a re-scheduling of services as long as the business does not mislead/pressure the consumer into acceptance.

In light of the above and the continuing issues with Covid it is probably a good time to review your complaint, return and cancellation procedures/policies.

Motoring Offences

As with any motoring business. Where you provide courtesy cars or test drives there will come a time when the driver has broken the law and you receive a request from the Police for the Drivers Details

As you are considering disclosing personal data, the GDPR and the Data Protection Act 2018 dictate your responsibilities and the principles to be applied. You are right to be consider the GDPR and we are finding in practice that their impact isn’t as disruptive as initially feared.

Notice of Intended Prosecution (NIP)

The first notice that you are likely to receive of any issues is Notice of Intended Prosecution.

The purpose of a NIP is to inform a potential defendant that they may be prosecuted for an offence. A NIP must be served on the Driver or registered keeper within 14 days. This can either be done through the post or at the roadside where the vehicle is stopped by a police officer.

A prosecution cannot proceed if the NNIP is not provided within 14days. However, a notice shall be deemed to be valid if it was posted to the last known address, notwithstanding that the notice was returned as undelivered.

Also, small mistakes on the notice will only render it ineffective if it would mislead the potential defendant.

Request for the Name and Address of the Driver

Most, if not all NIPS will be accompanied by a request for the Driver’s details. If you are the registered keeper of the vehicle there is a legal requirement to nominate the driver of the vehicle. Failure to provide the driver’s details is itself an offence under section 172 of the Road Traffic Act 1988 and this also carried points and a fine. In fact, in most cases the penalty for not providing the Driver’s details are more than the original offence and for most speeding offences is double.

It is strongly advised that the driver’ s details are provided.

Does the GDPR/Data Protection Act prevent me from giving the details?

No. Where the information is necessary for compliance with a legal obligation, such as responding to the police, then this will be lawful processing even if the data subject objects.

What if I do not have the details?

Then all you can do is respond honestly. There is a limited defence to not providing the details where you did not know who the driver was and could not have found out with reasonable diligence.

However, this is not an excuse to not keep a record of driver details or ‘forget’ who it was. The courts will as part of any case test such a defence. If the evidence to support your defence is insufficient then this can be taken into consideration when a court sentences you.

This is also less likely to apply if you are a company as the court will require a relatively robust system of control to be in place and that any failure to keep a record was reasonable. This can be quite a high bar.

In conclusion

It is very important that any NIP or request for information is dealt with promptly. It is important to provide the driver’s details promptly and accurately, or if you were not the registered keeper at the time to provide the true keepers details. Failure to do so is likely to result in a larger fine and more points and can result in personal and company liability.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us via the Direct Member Helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.