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This guidance supplements guidance issued by the Welsh Government on 7 April 2020 and focusses on the legal test applied by the regulations to maintain physical distancing in a work setting.

First published:
14 April 2020
Last updated:

This guidance supplements guidance issued by the Welsh Government on 7 April 2020[1] and focusses on the legal test applied by the regulations to maintain physical distancing in a work setting. It should be read in conjunction with that guidance and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 to which it relates.

[1] https://gov.wales/taking-all-reasonable-measures-maintain-physical-distancing-workplace

Introduction

Regulations 6(1) and 6A(1) of the Regulations require a person responsible for work (wherever that takes place) to take “all reasonable measures” to ensure that a distance of 2 metres is maintained between any persons on work premises.

To understand the nature of the duty, employers, employees and those who are enforcing the legislation need to know:

  • to whom does the duty apply, i.e. who is the “person responsible”?
  • where does it apply i.e. what is a “premises” and when?
  • what you need to do to fulfil the duty, i.e. what does taking “all reasonable measures” mean?

And once the nature of the duty is understood, employers need also to think about procedural and practical actions they should take both to fulfil the duty and to be able to demonstrate they have fulfilled the duty.

To whom does the duty apply?

As regulation 6A(1) applies to all “work”[2] as opposed to specific businesses or services, the duty is imposed on the “person responsible for work”. In most cases the person responsible for work will be the same as the “person responsible for the business” in regulation 6(1), however the position is more nuanced. This is because in accordance with the structure and rules of any particular entity (and potentially in accordance with the contracts of employment or job descriptions of staff) other persons may be responsible for how work is carried out in some settings. A manager may, for example, be responsible for deciding how work is carried out at a particular site or location in which work is being carried out. In such a case the manager could be the person responsible (or partly responsible) for ensuring the duty is complied with. This is similar to the position in relation to health and safety law, and businesses and other entities[3] will need to be clear who is responsible within their own organisations.

[2]  Other than work carried out at premises used for the purpose of a business or service listed in Schedule 1 to the Regulations.

[3] The requirement in regulation 6A(1) applies to all forms of employment including in the public sector.

Where and when does the duty apply?

Because the duty under regulation 6A(1) applies to all “work”, the duty applies very broadly to any “premises where a person is working”, and “premises” is defined to include “any building or structure and any land”. This is intended to include traditional workplaces (e.g. offices and factories) but also goes further to include places like road works, building sites and work taking place elsewhere, for example in people’s homes.

Premises is not, however, intended to include vehicles. The rationale for this is that in the majority of cases it is not realistic for reasonable measures to be taken to keep persons apart in a vehicle. Including vehicles would have also had implications for public transport and taxis, which could have had wider repercussions. This is, however, an issue that is being kept under review.  

What does taking “all reasonable measures” mean?

Reasonableness

The concept of having to act reasonably is not unusual in law, and it is a test that is already applied to businesses and other entities. As an example, in deciding whether someone has been unfairly dismissed, a tribunal will consider (in accordance with section 98(4) of the Employment Rights Act 1996) whether the employer “acted reasonably or unreasonably”.  Similarly, as a result of the Unfair Contract Terms Act 1977, a person seeking to rely on an exclusion clause in a contract has to prove that the clause is “reasonable”.

Under common law the concept of a reasonable person frequently underpins decisions of the courts as it is used to set an objective standard for adjudication. Reasonableness, therefore, represents the difference between a subjective test, which is based solely on what any one particular person thinks, and an objective test, which is based on what other ordinary people in a similar positon to that person would think. 

So in order to act reasonably you must ask yourself what other prudent (or careful) people would do if they were in your shoes.

A test of this nature already applies in a work setting – and it forms part of the most fundamental duty an employer has. The common law has long since established that an employer has a general duty to take reasonable care to avoid injury, disease or death occurring to their employees at work. This principle also underpins the Health and Safety at Work etc. Act 1974 which provides that:

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”[4]

[4] 1974 c.37 Section 2(1). Emphasis added.

Taking all reasonable measures: nature of the test

The requirement to take all reasonable measures to maintain physical distancing has two elements. The first involves establishing what reasonable measures can be taken, and the second (more obviously) involves making sure that all of those measures are actually taken.

What reasonable measures can be taken will depend on the particular circumstances, in other words the nature of the work being taken and the premises in which it is being done. However, as referred to above, the objective nature of the test means that determining what measures need to be taken in particular circumstances must involve considering what others is a similar position would do.

Part of what is needed when deciding what measures are reasonable is an understanding of the overarching context. The starting point here is the purpose of the Regulations, which is to reduce the spread of the coronavirus in Wales. All in society have a part to play in that respect, including in a work setting. However, the requirement applies to businesses and other entities that are allowed to continue to operate, and measures to reduce the spread of coronavirus must also be assessed against the need for the economy (and society more generally) to continue to function. This is particularly obvious in relation to work settings such as healthcare, food, and electricity generation.

What is reasonable will also depend on the effect a measure could have on an employer’s other duties, most notably to ensure the health, safety and welfare at work of employees.

What is reasonable, therefore, will to an extent depend on what an employer does and what effect taking the measure would have on employees.

What kind of reasonable measures can be taken?

It is not possible for the Welsh Government to prescribe what reasonable measures should be taken in all circumstances, and neither would it be appropriate. Working environments can be complex and the test envisages a degree of discretion for employers. This is because they will better understand what measures can reasonably be taken in their particular circumstances. Again this is consistent with the general duty to ensure the health and safety of employees.

In many cases the starting point for facilitating reasonable measures is to enable staff to work from home. Many employers could allow all or some of their staff to work from home and facilitate this way of working. That may require employers to provide laptops or mobile phones or to allow staff to borrow equipment that would normally be used in the workplace. Systems would also need to be put in place to enable easy communication between staff wherever they are.

Even if it only feasible for some staff to work from home this could make it easier to take physical distancing measures elsewhere.

Beyond this, what reasonable measures can be taken will involve an assessment of:

  • the nature of the work being done i.e. can it be done by people working alone and is it safe for it to be done alone;
  • if work can’t be done by people working alone, the extent to which people need to work in close proximity to each other (i.e. for how long they have to);
  • the location of the work, and whether the work has to be done in that location;
  • what measures can be taken to keep employees apart while doing the work.

Having done this assessment, the next step is to assess whether a measure is reasonable. The duty does not require all possible measures to be taken, only all those that are reasonable.

In assessing what is reasonable account can be taken of the cost of taking a measure (including costs arising from inefficiencies) and whether taking a measure could lead to increased health and safety risks. It is likely, however, that taking reasonable measures will have cost implications in many cases.

Examples of reasonable measures, and of circumstances where such measures are unlikely to be able to be taken were provided in the guidance issued on 7 April.

Enforcement

The requirements in regulations 6(1) and 6A(1) are statutory duties, a breach of which constitutes an offence. 

Failure to comply can be dealt with by way of a Fixed Penalty Notice, however those who breach the duty could also be prosecuted for an offence punishable by an (unlimited) fine.

The onus is on those prosecuting a case alleging breach to prove beyond all reasonable doubt that the person responsible has failed to take reasonable measures. However, in practice, persons responsible (employers) should maintain records of assessments of what reasonable measures can be taken in all relevant circumstances and what measures have been taken.

Liaison with staff will also be important, both in their interests and in the interests of the employer. Complaints made about a failure to take reasonable measures are likely to be made by staff.

Complaints could be made to local authorities or to the police who have powers to investigate. Environmental health officers in Welsh local authorities have been designated for this purpose.

Is the position different elsewhere in the UK?

The requirements to take all reasonable measures to maintain physical distancing is only a legal obligation in Wales. The approach in England, Scotland and Northern Ireland is different although based on the same aim – maintaining physical distancing where this is possible. In the other countries of the UK this has been done by way of advice set out in guidance. But guidance, as the word suggests, is a guide to what to do. It cannot impose legal obligations.

More generally Ministers in Wales, England, Scotland and Northern Ireland have powers to take further steps to close premises or businesses, but this cannot be done in guidance. This must be done either by Regulations made under the Public Health (Control of Diseases) Act 1984 or by Direction made under the Coronavirus Act 2020.

Summary

  • There is a legal obligation to maintain physical distancing while working.
  • The physical distance is at least 2 metres.
  • The obligation is on the “person responsible” for a business or service, or the person responsible for the work (though in practice this will often be the same person: usually the employer).
  • It applies wherever people work (though at present it does not include vehicles).
  • Employers need to assess what measures can be taken in all work settings to maintain physical distancing.
  • But they need only take such measures as are reasonable.
  • What is reasonable will depend on the circumstances, but it is an objective test based not on what any particular employer thinks but on what a careful or prudent employer would do in similar circumstances.
  • Good practice suggests that employers should make a record of the assessments taken, on measures taken and of decision taken not to take measures (with reasons).
  • Failure to comply is an offence.

Frequently Asked Questions

What are the implications for critical sectors and supply chains within those?

The requirement to take all reasonable measures to ensure a distance of 2m is maintained between persons applies to all work settings.  This is a vital part of minimising the risk of transmission of COVID 19.  Minimising that risk for persons in critical sectors and supply chains is as important as it is for anyone in our society, so where reasonable measures can be taken to minimise the risk for those persons they must be taken.

Why has this been done in law and not just in government guidance?

Social distancing guidance has been a fundamental element of minimising the risk of transmission of coronavirus across the UK. We expect that the vast majority of businesses were following advice previously issued on this and were applying it to the work setting. But the Welsh Government was aware of businesses that were not taking any action to reduce the risk of transmission and considered it important to impose a legal requirement, backed up by enforcement powers and ultimately sanctions. This also reinforces key messages.

Stay at home or stay apart.


How should firms operate given that this new law is currently uncertain?

The legal requirement is clear. All reasonable measures must be taken to ensure a distance of 2m is maintained between persons in a work setting.  This is an objective test that requires the person to take all the measures that a reasonable and rational person would take in the circumstances. This is similar to many other requirements imposed on workplaces under health and safety laws. 

Further examples include:

  • “Every workplace and the furniture, furnishings and fittings therein shall be kept sufficiently clean.” (regulation 9(1) of the Workplace (Health, Safety and Welfare) Regulations 1992);
  • “Every employer shall, where necessary to prevent injury to any person, take suitable and sufficient steps to prevent, so far as is reasonably practicable, the fall of any material or object.” (Regulation 10(1) of the Work at Height Regulations 2005).

If this change in law is not absolute, could companies have insurance issues and close as a precaution?

Again, businesses are already obliged to take reasonable (or suitable) measures in a health and safety context and these will be different in different circumstances. They also involve businesses assessing what is reasonable in any given circumstances. As a legal requirement, this is not novel.

UK guidance provides the power to close businesses down. Will that be applicable here?

UK guidance does not provide a power to close businesses down. But the UK Government (in relation to England) and the Welsh Government (in relation to Wales) can do so by Regulations made under the Public Health (Control of Disease) Act 1984 – and this has already been done. In addition, the Coronavirus Act 2020 recently passed by the UK Parliament gives powers to the UK Government in England and to all the devolved administrations to close premises or restrict access to them in order to prevent, protect against, delay or otherwise control the incidence or transmission of coronavirus (Schedule 22).

If a business can't abide by the 2m “rule” in England, UK Government is telling firms to down tools. In Wales, if you can't abide by the 2m rule, Welsh Government is telling firms that they can carry on working as long as they have made "reasonable" attempts to comply. Is this correct?

No. In England there is no legal requirement to take measures to ensure the 2m distance is maintained between persons, and no legal requirement to close workplaces other than the businesses listed in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (which broadly matches the Welsh Regulations as far as businesses which are required to close is concerned).  In England, only guidance has been issued and there is no sanction are for failing to take reasonable measures.  In Wales, all workplaces must take all reasonable measures as a matter of law.

Reasonable measure is open to interpretation, how can we be sure employers and employees will not face action from over-zealous enforcement?

Employers should approach this as they would other health and safety requirements. Co-operation is encouraged between all those working in the workplace to understand and agree what reasonable measures should be taken.  But the legal responsibility lies with the person responsible for the business or for the work.  That person must objectively assess what the reasonable measures are having had regard to the Welsh Government guidance.

If an employee disregards physical distancing measures put in place in the work place, what measures will be taken against the company?

If the person responsible (generally the employer) has taken all reasonable measures, and what employees are required to do has been made clear, then a failure on the part of the employee to comply would not generally constitute a breach on the part of the employer. However, if the employer is aware (or should be aware) that an employee is wilfully ignoring those measures, then disciplinary action could be taken in accordance with the employee’s terms and conditions of employment (and potentially should be taken as this in itself could be a reasonable measure that employers would be required to take to ensure physical distancing).

What if an employer attempts to penalise a worker because of a fine resulting from a breach?

This depends on what part the worker played in the breach and the worker’s terms and conditions of employment.

How will businesses be aware of the law?

This emergency change in the law has been widely publicised by the Welsh Government and, in the normal way, the Regulations can be found on legislation.gov.uk and the guidance on the Welsh Government website. The Welsh Government has also published a consolidated version of the Regulations.

Will the Welsh Government be responsive to any difficulties that emerge in implementation and be prepared to make changes to the law?

Yes. The Regulations must be reviewed every 3 weeks (with the first review on 16 April). The Welsh Government will continue to engage with stakeholders as part of the ongoing review process.

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