Posted on the 7th January 2021
We have put together a summary of some of the key updates of concern to reuse charities and social enterprises in Wales.
The default position with regard to shops (“any business selling goods or services for sale or hire in retail premises”) in Alert Level 4 is that they should all be closed, unless they are a category of shop that provides goods or services that are explicitly allowed.
Generally, speaking businesses operating out of shops should assume they will be required to close those shops and cease their activities unless they are exempt due to the goods or services they provide is deemed to be “essential”.
This is consistent with the overarching requirement imposed on the people of Wales to stay at home in Alert Level 4. The default position is that people must stay at home unless they have a reasonable excuse to leave. Reasonable excuses are listed, but they only apply if leaving home is necessary. So leaving home for any reason that is not essential is not allowed
Some shops such as supermarkets sell multiple types of product, including the types of products normally sold by shops which are required to close at Level 4.
For the purposes of the Regulations, these shops are operating more than one type of business and they are required to close those parts of their premises selling products that a type of business which has been required to close would normally sell.
The responsibility for closing premises and not selling certain products cannot be delegated to customers and must be managed by the shop. Shops cannot divest themselves of this responsibility, and for the avoidance of doubt making all of their products available and merely asking customers (for example through signage or announcements) not to purchase anything that the customer thinks they have good reason to buy does not meet the legal obligation.
The areas which can be open in shops selling multiple product types are areas selling:
In addition, a supermarket may sell any item ordinarily sold in small stores such as convenience stores, corner shops and off licences.
These restrictions mean some shops will need to close some areas of their premises to customers. Some parts of large stores will display those “essential” goods that are allowed to continue to be sold while other parts may sell other “non-essential” goods. Where it is reasonably practicable for these to be clearly separated or demarcated then those non-essential goods may not be sold.
In large supermarkets, in most cases it will be clear that certain sections of the store must be cordoned off or emptied, and closed to the public. Where there are distinct parts of a store selling (for example) electrical goods, clothes, toys, games, or products for the garden, these should be closed to the public – and these products should not be sold.
Where such products do not have their own sections of the shop but are in distinct aisles, these should also be closed off or cordoned off if reasonably practicable. However, shops will need to make these arrangements in ways which allow safe circulation of customers around the premises, and so particularly in smaller premises we recognise that it will not always be possible to close whole aisles.
In a mixed aisle that contains a combination of items listed above and other items, it is not compulsory for every non-listed item to be withdrawn from display or covered if this is not reasonably practicable.
Although the test of whether it is reasonably practicable to divide a store in this way is an objective one (based on what a reasonable person would think), the manager of a store will have an element of discretion due to that person best knowing the layout of the store. Supermarkets should not, however, re-organise their stores or how goods are displayed in order to make it more difficult to differentiate between essential and non-essential goods.
The regulations also allow shops selling multiple product types to sell any other products that are in closed sections of the shop at Level 4, if they are needed in an emergency or on compassionate grounds.
Examples of such products may include items that are not normally time-sensitive but can become essential in the event of a breakage such as microwaves or kettles, or may be needed to replace outgrown or heavily worn products such as children’s clothes or shoes.
Specific arrangements need to be put in place to sell products in these circumstances. Under these arrangements customers should be required to request a purchase of a specific product, and they should not have free access to the product in the shop or be able to browse a product range. Shops may provide appropriate information, such as signs and tannoy announcements, to advise customers that they should consider purchasing online but may request purchases in the shop in the circumstances described above. Shops are not, however, required to ask for evidence from the customer that demonstrates that these circumstances apply. The onus here is on customers to comply with the law by having a reasonable reason to leave home to purchase the product, not on the shop to establish whether the customer has a need for the product.
We appreciate that retail staff can unfairly bear the brunt of the frustration of their customers. For this reason the Welsh Government will also communicate to the public their responsibilities and remind them not to challenge shop workers and that poor behaviour is unacceptable. We also advise shop managers to use announcements and other messaging to remind shoppers of the rules.
Unlike in earlier lockdowns, at Level 4 all shops can offer click and collect or similar services, whether or not they are required to close their premises. To reduce the number of journeys people make, all goods and services must be ordered in advance online, by telephone or mail order.
All reasonable measures must be put in place to ensure that a 2 metre distance is maintained between persons on the premises, as well as people waiting to collect goods at the entrance to the premises or other designated external collection point. Shops should also ensure if possible that customers do not have to enter indoor sections of closed retail premises to collect goods, and that click and collect collection points are operated as safely as possible. For example, shops should:
Please see the guidance on reasonable measures for more information.
All services on this list, whether or not required to close at Level 4, are entitled to continue to use their premises for the purposes of managing the sale, hire or delivery of goods or services, if this is managed online, by telephone or mail order.
If your business is required to close then customers should not be permitted to enter the store to return goods. Retailers may wish to offer flexible dates for return of goods.
Mobile phone operators’ retail stores are permitted to stay open for the purpose of service enquiries and customer support, such as repairs. They should not be open for general sales.
However, goods can be sold if they are needed in an emergency or on compassionate grounds. This might include helping customers stay connected if their sim card stops working or if the hardware or software malfunctions.
Specific arrangements need to be put in place to sell products in these circumstances. Under these arrangements customers should be required to request a purchase of a specific product, and they should not have free access to the products in the shop or be able to browse a product range. Shops should have appropriate signage at the entrance to indicate that they are not open for general sales but for repairs and other essential services.
Shops are not, however, required to ask for evidence from the customer that demonstrates that these circumstances apply. The onus here is on customers to comply with the law by having a reasonable basis to leave home to purchase the product, not on the shop to establish whether the customer has a need for the product.
Work carried out in people’s homes, for example by tradespeople, can continue as long as it is managed in a safe way and both the worker and household members are well and have no symptoms of coronavirus. However, we recommend that people consider whether the work can be safely deferred until they are no longer in Level 4.
Like other businesses, people working in someone else’s home must take all reasonable measures to ensure to mitigate the risk of coronavirus spreading when working in other people’s households. Please see the guidance on reasonable measures and on working in other people’s homes for more information.
It is also recommended that no work should be carried out in any household where someone is isolating, unless it is to repair a fault which poses a direct risk to people’s safety – for example, emergency plumbing, or carry out an adaptation to allow that household to remain in their property. If attendance is unavoidable (because of an urgent or emergency situation), additional precautions should be taken to keep workers and householders completely separate from each other. In these cases, Public Health Wales can provide advice to tradespeople and households. But no work should be carried out by a tradesperson who has coronavirus symptoms, however mild.
Businesses which are required to close may not conduct their services in other people’s homes
These are required to close at Level 4, with the exceptions set out in the table further down this page. However, takeaway and food delivery services may remain open. This means people can continue to enter premises to access takeaway services, including delivery drivers, but all reasonable measures must be put in place by those responsible for carrying on the business to mitigate the risk of coronavirus spreading when working in other people’s households. This includes ensuring that 2 metres distance is maintained between persons on the premises, as well as people waiting to enter the premises.
Businesses are encouraged to take orders in advance online or by telephone, and businesses must not provide seating areas, indoors and outdoors, for customers to consume food or drink.
Restaurants, cafés and pubs which do not otherwise offer delivery and hot food takeaway are able to offer such services at Level 4.
People must not consume food or drinks on site at restaurants, cafés or pubs whilst waiting for takeaway food.
Those venues offering takeaway or delivery services must not include alcoholic beverages in this list if their licence does not already permit it.
All services on this list, whether or not required to close, can be accessed by the site owners or managers, or people authorised by them, for the purpose of maintenance, repairs or other work to ensure readiness to reopen at a point where this is permitted.
Everyone must comply with the restrictions and requirements set out in the Regulations. A business operating in contravention of the Health Protection (Coronavirus Restrictions) (No 5) (Wales) Regulations 2020 will be committing an offence, which may attract a fine which is not limited on the statutory scales.
In addition, businesses or premises which are found not to be taking all reasonable measures to mitigate the risk of spreading coronavirus are subject to a separate enforcement regime which can ultimately result in the issuing of a closure notice.
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