The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020 came into force on 13th May 2020 following the Prime Minister’s announcement on Sunday, amending the original regulations which first brought the lockdown into force.
Along with this came the government’s controversial new mantra of “Stay alert. Control the virus. Save lives.” The headline of the announcement was that workers are to be “actively encouraged” to return to work, but that restrictions would continue until the rate of infection decreased.
Many are wondering what the government’s shifting message means for the lockdown in practice. I have previously written a guide to the lockdown regulations in England when they first came into force and what amounts to a “reasonable excuse” for leaving your home. Below I look at the key changes to those restrictions and how the scope of what amounts to a reasonable excuse has changed.
It remains an offence under reg 6 to leave or be outside of your home without reasonable excuse, but the non-exhaustive list of examples of reasonable excuses has been updated.
In addition to leaving your home for exercise, you are allowed to leave your home for open-air recreation at “public open spaces” such as public gardens or open country – basically to get some fresh air for your physical, mental or emotional wellbeing.
Significantly, you are now allowed to meet one other person in public that you do not live with for exercise or open-air recreation (reg 6(b) and (ba)). There is no strict legal requirement to stay 2m apart from the other person and it does not appear there is any power to enforce social distancing from that other person. However this is clearly still good advice to be followed in order to help prevent the spread of infection between households.
Public gatherings of more than two people are still unlawful unless all of those people are from the same household (reg 7). This means that if you are meeting someone from another household, they must meet you alone. If they meet you along with a member of their own household, that will be a gathering of more than two persons not of the same household and is therefore unlawful.
It is also now a reasonable excuse to leave your home to take steps in relation to the buying or letting of property, e.g. visiting estate agents, viewing properties, decorating properties, or moving in (reg 6(l)).
The amendment also clarifies that it will be a reasonable excuse to leave the home to collect goods which have been ordered from a business which is still legally open (reg 6(ab)), or to visit a waste or recycling centre (reg 6(n)).
As far as sanctions and enforcement are concerned, the amount payable under a Fixed Penalty Notice has been increased from £60.00 (£30.00 if paid within 14 days) to £100.00 (£50.00 if paid within 14 days). This will double with each subsequent FPN, up to a maximum of £3,200.00. This is significantly higher than the previous £960.00 maximum.
Although the motive behind the government’s message actively encouraging workers to return to work may be politically questionable, nothing in the law has actually changed regarding workers. It was always a reasonable excuse to leave the home to go to a place of work where it was not possible to do that work from home (provided their employer was still lawfully open for business).
However, you are not under a duty to risk your health and safety at work just because the Prime Minister is encouraging you to return to work. If you are able to work from home then you should continue to do so as this is clearly safer than exposing yourself to the risks of gathering in the workplace. For those who cannot work from home, if your employer expects you to return to work for them they have a duty to ensure you have a safe working environment or provide you with personal protective equipment (‘PPE’) so that you can work safely.
If your employer still expects you to attend work but fails to provide a safe working environment or PPE, they will be breaking the law. If you refuse to go into work because your employer won’t take steps to protect your health and safety at work and they dismiss you, you may have a claim for constructive dismissal.
If your employer is forcing you to return to work in your usual workplace without making sure it is safe for you to do so, you may find our article on health and safety at work and the right to PPE helpful.
Health and health services are devolved matters on which the Welsh Ministers are entitled to pass regulations independently of the UK government. In this instance it appears the Welsh Ministers have decided that the public health response to a particular threat should be different from that of the UK government, which has clearly led to a divergence between the lockdown restrictions in England and Wales.
Those wishing to cross the border from England into Wales for their exercise and open-air recreation have been told that whatever the message and restrictions in England may be, the law in Wales applies as soon as they cross the border.
If you are thinking of travelling to Wales at any point while the restrictions are in force, you may find this article discussing the amendments in Wales helpful – but in general, crossing the border for exercise or open-air recreation has been discouraged and is unlikely to be considered a reasonable excuse.
For many, these changes will be welcomed to help those struggling with their mental health since the lockdown was first imposed as they can now meet friends or members of their family outside their homes.
However, the changes have attracted some criticism, with some observing that the amendment does more for the housing market than for isolated families during this difficult time. On the one hand a person is entitled to leave their home to decorate a house that they are looking to sell or view a house they want to move into. On the other, a person who lives alone and has been isolated from their family for the last several weeks is allowed to meet either their mother or their father in a park when going for a walk, but not both at the same time.
In any event, as I have said previously, the law is still not as strict about when you can leave your home as you may have first thought. A person who has a reasonable excuse for failing to observe the Regulations will still have a defence in law. Although the Regulations offer some guidance, they are not and were never an exhaustive list and whether a person had a reasonable excuse for their actions is arguable in any given case.
We are able to offer advice and assistance to any person who is charged under these Regulations or is given a Fixed Penalty Notice that they want to challenge.
When I first wrote about the lockdown in England, there had already been 578 deaths. As I write this article, over 30,000 deaths in the UK have been attributed to Covid-19. Do not be fooled into thinking the situation is any less serious just because the government’s mantra has changed. There is still a lockdown and the penalties for breaching that lockdown have increased, with good reason. The lockdown rules and public health advice on social distancing need to be followed if we are to lower the rate of infection and prevent a “second wave” of infections and deaths.
In summary, despite the lack of clarity in the government’s public statements this week, the main thrust of the regulations remains the same – unless you have a reasonable excuse, remain indoors.
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