Kate Swaine
Partner
Co-Head of Intellectual Property, Global
Article
6
To prevent the spread of coronavirus (COVID-19), the Government passed the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 ("COVID-19 Regulations"), under which certain businesses and venues are under an obligation to close unless an exception applies.
Retail businesses are caught under Regulation 5. As online selling is permissible, businesses may continue to employ necessary staff at warehouses and utilise delivery resources essential to their continuity, however every store or venue must close. As businesses look to move or increase their presence online during the pandemic, the current obligations are likely to affect mainly three areas: relationships with customers, workplace governance and relationships with third parties. We discuss these below.
Customers must be made aware of any changes to the terms and conditions of the business operating under the COVID-19 Regulations. Changes must be clear and upfront, which can be achieved by summarising the changes in a pop-up notice displayed on the website.
Changes that businesses should consider include lengthier delivery timescales and the method of delivery. For example, customers will not be able to sign for deliveries or accept delivery in person in accordance with social distancing rules. Breach of the COVID-19 Regulations is an offence, so the terms and conditions will need to set out the extent to which any responsibility lies on the customer once a package is left on the doorstep.
Employers are obliged to ensure the safety of their staff working at warehouses and in the delivery of its goods and/or services. There is a certain amount of discretion allowed, subject to strict observation of the following rules:
For more information on the collection and processing of personal data in a COVID-19 context, please see our insight, Processing personal data for COVID-19 purposes.
Businesses should review any leases or licences if they do not own their premises or warehouses. Logistically, landlords may be under an obligation to provide services either on an exclusive or shared basis, for example, access to communal areas or roads. We recommend that the parties agree on the approach whilst the COVID-19 Regulations and lockdown period applies. Action may need to be taken if landlords are not prepared to assist.
Businesses should also review any existing agreements or subscriptions with delivery companies, particularly the terms in place for the collection and delivery of goods to ensure compliance with the COVID-19 Regulations and any other rules as amended or updated by the Government. They should also clarify the roles and responsibilities of the parties when collecting and delivering goods.
Breaching the COVID-19 Regulations is an offence. Directors/managers/secretaries or similar officers of a company will most likely be prosecuted if the company contravenes these rules. Acting contrary to the steps set out in this insight may also constitute a breach of consumer, employment and data protection law as well as, in certain cases, a breach of a contract. In light of this, we consider this a high-risk legal issue and recommend that businesses carefully consider the points above and involve relevant stakeholders to discuss how to manage their resources to implement suitable measures.
We are able to support you and provide specific advice on each of the points raised in this insight. Please do not hesitate to contact us if you require assistance.
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