The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force at 1pm on 26th March 2020. These Regulations implement the Prime Minister’s statement on Monday in relation to mandatory business closures and give that statement legal force.
Schedule 2 of the Regulations set out the detailed information on which businesses must close (see link https://www.legislation.gov.uk/uksi/2020/350/schedule/2/made) but in summary:
- Restaurants, bars, pubs, cafes and canteens (with some exceptions including those in hospitals or schools) must close, except for the purposes of takeaway food;
- Cinemas, theatres, fitness studios/gyms, beauty parlours, outdoor parks must close;
- Any shops not listed in part 3 of Schedule 2 must close, those listed (and may therefore remain open) include food shops, newsagents, pharmacies, petrol stations, off licences, post offices.
Despite some ongoing legal debate over whether or not such mandatory business closures could result in employment contracts being frustrated (in other words allowing employers to treat them as no longer applying due to the existence of a frustrating event), this seems extremely unlikely to be a safe approach for an employer to take.
Employment Tribunals are extremely reluctant to find that employment contracts have been frustrated. A frustrating event must be so fundamental as to strike to the root of the contract and render further performance impossible, illegal or make it radically different from that contemplated at the time the contract was entered into.
Despite the mandatory closure of businesses, this is currently only for a period of three weeks (although it is anticipated to be much longer) and it is likely that employees will be able to return to work at the end of this closure period, this is a possibility that is reasonable to expect. Employers would therefore be expected to accommodate this level of interruption in an otherwise continuing employment relationship.
Employers will be expected to make use of the Job Retention Scheme where possible. In the event that employees are not able to return to the workplace, employers would be advised to consider redundancy dismissals (following a fair and proper procedure) rather than opting to attempt to treat contracts as frustrated (which would allow strong claims for wrongful and unfair dismissal).
