Following Prime Minister Boris Johnson's announcement, the Government has moved quickly to give the closure of pubs and other businesses legal backing. The coronavirus epidemic requires strong legal measures. The businesses referred to in the announcement were a broad group but inevitably many more complicated businesses were left wondering where they stood.
Everybody, of course, wants to do the right thing but livelihoods are at stake. The risks of getting it wrong are not only fines and a criminal record but also potentially catastrophic publicity and long-term reputational damage. Too cautious an approach could damage finances unnecessarily.
In many cases it will be obvious that a business is one of the following: "cafe, pub, bar, restaurant, nightclubs, theatre, cinema or gym" although "leisure centre" may be more problematic. Do the new regulations throw any additional light?
The decision found its way into law at 2pm on 21 March 2020 in the form of the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 made under Public Health (Control of Disease) Act 1984.
There are basically two types of business affected. Those selling food for consumption on their premises including any adjacent outdoor seating and those within various leisure categories. The first category must close their premises (but can offer take-aways instead) the second category must cease operations.
A "person responsible" for the business who fails to comply commits an offence punishable by a fine. If the business is carried on by a company, individual directors or managers may be prosecuted if they have consented to the breach or been careless in preventing it.
There are provisions dealing with businesses which have a range of activities some of which must cease and some of which may continue. Partial closure of premises may also be appropriate.
Take the position of a golf club as an example. It may have a restaurant, and will certainly have a bar, which will have to close. It may have a gym which will also have to close. Perhaps showing golf videos in the clubhouse would not make it a cinema but may create other types of civil liability issues. It's unlikely to be able to sell take away gin and tonic, if it has any form of adjacent outdoor seating. If it has outdoor tennis courts, they may still be usable but probably not any changing rooms within the main clubhouse. The golf course itself may be usable on the same basis, but is a golf club offering a range of leisure facilities a "leisure centre"?
It is likely to be sometime before Government guidance starts to provide more detailed answers. Until then it is necessary to interpret the law as it now exists. Although common sense can serve a manager well, closure, which is not required by law, may have an impact on rights to refunds or the continued payment of subscriptions. Eventually any form of compensation scheme may be limited to legally compulsory closure.
The sensible course where there is any significant legal doubt is to get urgent legal advice – but then I would say that wouldn't I?