The new legal rules that will apply to the English lockdown have been published. The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 come into force today (Wednesday 6 January 2021) and, lists those businesses that are subject to restrictions, have to close or are allowed to remain open. Essentially, the whole of England is now subject to amended Tier 4 restrictions.

Businesses that must close

There's no real surprises here - and the provisions more or less mirror those contained in earlier lockdown legislation. The full list of these businesses can be found in the guidance on closing certain businesses and venues in England, but includes:

  • all non-essential retail, including, clothing and electronics stores, vehicle showrooms, travel agents, betting shops, most auction houses, tailors, manual car washes, charity shops, tobacco and vape shops
  • indoor and outdoor leisure facilities such as bowling alleys, leisure centres and gyms, sports facilities including swimming pools, golf courses and driving ranges, dance studios, stables and riding centres, soft play facilities, climbing walls and climbing centres, archery and shooting ranges, water and theme parks
  • entertainment venues such as theatres, concert halls, cinemas, museums and galleries, casinos, adult gaming centres and arcades, bingo halls, bowling alleys, concert halls, zoos and other animal attractions, botanical gardens
  • personal care facilities such as hair, beauty and nail salons, tattoo parlours, spas, massage parlours, body and skin piercing services, non-medical acupuncture, and tanning salons

Schools and colleges must close to all pupils other than those who are vulnerable or whose parents are essential workers. 

Businesses that are subject to restrictions

Businesses serving food and drink on their premises such as restaurants and cafes can only offer take out services (subject to a few exceptions).  

Businesses that can remain open

Businesses providing essential goods and services can stay open. The full list of these businesses can be found in the guidance on closing certain businesses and venues in England, but includes:

  • Food shops, supermarkets, pharmacies, garden centres, building merchants and suppliers of building products and off-licences
  • Market stalls selling essential retail goods
  • Early years providers such as nurseries and childminders
  • Petrol stations, automatic (but not manual) car washes, vehicle repair and MOT services, bicycle shops, and taxi and vehicle hire businesses
  • Dentists, optician, chiropodists, chiropractors, osteopaths and other medical or health services, including services relating to mental health
  • Banks, building societies and post offices
  • Funeral directors
  • Laundrettes and dry cleaners
  • Medical and dental services
  • Vets and animal feed/product retailers

Please note: the separate guidance says that 'businesses that provide services (rather than goods) - such as accountants, solicitors, and estate agents can remain open - but staff are still subject to the general 'work from home if you can' rule (explained below).

What about those businesses which are not included in any of the lists?

The Regulations don't mention call centres, offices, factories and many other organisations. Instead, separate guidance says:

'You may only leave your home for work if you cannot reasonably work from home.'

The government expects that organisations that are operating and supporting vital sectors and employers will remain open provided they comply with the guidelines on working safely during Covid which were last updated on 1 January 2021.

The Regulations give employees the legal right to travel to and work away from their home if it's not 'reasonably possible' for them to work from home (this mirrors the wording contained in the previous lockdown Regulations). That concept is not defined and will be subject to interpretation. However, in most cases, you will find it difficult to argue that staff who have previously worked from home during the first lockdown can't do so this time - even if the arrangements were less than perfect. However, if you engage employees who live in cramped conditions, are worried about domestic violence or have mental health problems, you may be able to allow them to return to the workplace provided it is Covid secure. Take advice if you're not sure. 

Shielding

The government has reintroduced the shielding programme in England. This means that anyone who is advised to shield must not attend work (even if their workplace remains open) and can only work if they can do so from home.

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