Duty of care: The Coronavirus and the law

By James Campbell and April Lord

- Last updated on GMT

The Coronavirus and the law for restaurants

Related tags: Legal action, Coronavirus, Casual dining, Fine dining

James Campbell and April Lord of law firm Pillsbury on the legal implications the Coronavirus has for restaurants, including risk assessments and force majeure in contracts.

They key point to note is that restaurants owe a 'duty of care' to their customers. This means they have to ensure their customers’ safety and protect them from harm. Legislation imposes a requirement on restaurateurs to keep customers safe. If they fail to live up to these duties, they may face a claim for compensation from customers.

There is also a legal requirement for restaurants to maintain employees’ health and safety. In particular, the requirement would include taking steps to ensure good hygiene in the restaurant and making sure that working practices do not put employees at unnecessary risk.

One aspect of this is that restaurants should ensure that sickness policies do not encourage staff to come to work when they’re not well, which may risk the health of other employees or members of the public. Risk assessments should be in place in case managers need to respond to a situation at short notice, as might be the case if a member of staff falls ill.

It is also suggested that restaurants appoint someone to take responsibility for checking Government​ and ACAS​ advice and making sure that all staff are up to date. As a basic precaution, restaurants should make sure that they are following the latest advice from the Government and are displaying information to customers and staff about hand washing, cleanliness and hygiene to demonstrate that they are taking steps to comply with their obligations.

If there is a suspected or confirmed case of COVID-19 at a restaurant, the Government’s current advice is that it is not immediately necessary to shut the restaurant. If an employee feels symptoms of COVID-19 then the employee should go home and stay home for seven days. If they feel they cannot cope with their symptoms, their conditions get worse or conditions continue after seven days, they will need to use the NHS111 website to decide what to do next.

If an employee is diagnosed with COVID-19 then the restaurant should tell other members of staff, but Government guidance is that the name of the person who has been diagnosed should not be mentioned. Other employees should be encouraged to monitor their own symptoms and consult the NHS111 website if they are worried that they might have COVID-19.

Public Health England will work with the restaurant to do a risk assessment and work out whether any other measures need to be taken. If restaurants have information to hand about where staff have travelled to, and which customers have been in the restaurant on particular days, that will help the authorities.

Restaurants should plan for what will happen if school closures or other measures which the Government might implement mean that staff are unable to come to work. They will need to consider what the minimum level of staff is to allow them to operate safely and with customers’ and employee’s health and safety in mind.

Contracts and insurance

Force majeure clauses in contracts can allow for a pause in the obligations agreed to or for the contract to come to an end in certain extreme situations. The contract itself will set out what situations this would apply in, if it contains this type of clause. Common events which might be covered are 'pandemics' or 'government measures' which make it difficult for the contract to go ahead as normal.

In view of this, restaurants are well advised to check their contracts for large bookings and events, or their contracts with suppliers, to plan for situations where large bookings might cancel, allowing them to plan accordingly or see whether they can re-negotiate minimum order requirements, if they have them.

Restaurants may already have insurance for 'business interruption' that covers any losses that the restaurant faces because of disruption or closure relating to Coronavirus or government measures that might be imposed.

However this is not universal practice and policies differ on the details of what events are covered and whether there are any exclusions which would stop a claim being made. This should be checked, as sometimes pandemics that can be predicted, or particular named viruses, will be specifically excluded.  

The good news, if there is any, is that the Government is aware of the potential impact on the restaurant sector. The treasury’s recent budget established various loans, grants and tax reliefs to help businesses to cope with the effects of Coronavirus. However, while these measures are helpful, they may not fully cover losses nor help with cashflow problems so the more pro-active a restaurant can be in its response, the better.

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