The Tier 4 Regulations: impact on businesses

December 20, 2020

Gary Grant sets out the key points for businesses from the Government's regulations implementing the new Tier 4.

What?

Following the Prime Minister’s Santa Claus infuriating television announcement at 4pm on Saturday 19 December 2020, the Tier 4 Regulations were made at 6am on Sunday 20 December by the Health Secretary. They were published at around 6.57am and came into force 3 minutes later at 7am. This represents a speed of change that even globe-trotting reindeers will find a challenge.

The associated “Stay at Home” Guidance was published the preceding Saturday night. As always, the regulations are the law and not the Guidance.

The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020 (“the Tier 4 Regulations”) make changes to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (“the All Tiers Regulations”). They create a further Tier 4 of restrictions and place certain areas within that Tier. This is achieved by inserting a new Schedule 3A to the All Tiers regulations.

The Tier 4 regulations apply to England only. Separate regulations for Wales were made on 18 December (as amended the following day).

The enforcement powers under the All Tiers regulations will continue to apply to Tier 4.

They also amend the Health Protection (Coronavirus, Restrictions) (Obligations on Undertakings) (England) Regulations 2020 to clarify the obligations on certain undertakings (for which see Part 3 of the Tier 4 regulations).

This, necessarily hastily prepared, article will briefly mention the further restrictions on people movement and gatherings in Tier 4 but does not seek to deal with the Christmas non-relaxation or travel out of and into Tier 4 areas.

Its focus, instead, is on the restrictions that impact on business premises and services.

Where?

The new Tier 4 applies to all 32 London Boroughs and the City of London (including barrister haunts in the Inner and Middle Temples). It also covers these areas in the South East and East of England:

Kent County Council
Medway Council
Buckinghamshire Council
West Berkshire Council
Bracknell Forest Council
Reading Borough Council
Royal Borough of Windsor and Maidenhead
Wokingham Borough Council
Slough Borough Council
Elmbridge Borough Council
Epsom and Ewell Borough Council
Guildford Borough Council
Mole Valley District Council
Reigate and Banstead Borough Council
Runnymede Borough Council
Spelthorne Borough Council
Surrey Heath Borough Council
Tandridge District Council
Woking Borough Council
Hastings Borough Council
Rother District Council
Havant Borough Council
Gosport Borough Council
Portsmouth City Council
Hertfordshire County Council
Bedford Borough Council
Central Bedfordshire Council
Milton Keynes Council
Luton Borough Council
Peterborough City Council
Basildon Borough Council
Braintree District Council
Brentwood Borough Council
Castle Point Borough Council
Chelmsford City Council
Epping Forest District Council
Harlow District Council
Maldon District Council
Rochford District Council
Southend-on-Sea Borough Council
Thurrock Council

People movement and gatherings

In relation to people movement and gatherings, the Tier 4 regulations are a return to a similar past life under Lockdown 2. Part 1 and 2 of the new regulations, to which the reader must have regard before taking any steps, contain the full details and recognised exceptions.

In general, you must not leave your home or garden without a reasonable excuse. You must not meet with another person socially or undertake any activities with another person. However, you can exercise or meet in a public outdoor place with people you live with, your support bubble (or as part of a childcare bubble), or with one other person.

A reasonable excuse to leave your home includes (but is not limited to) specific purposes set out in the regulations such as for: work purposes, essential shopping (e.g. food, drink and medicines), education and childcare (schools remain open), to fulfil legal obligations (e.g. attending court), outdoor exercise or visiting some public outdoor places (e.g. parks, the countryside, public gardens, or outdoor sport facilities), medical reasons or for communal worship. Subject to limits on numbers, people may attend weddings and funerals.

With that very brief, and non-exhaustive, summary of the restrictions on people movement and gatherings, this article now turns to the impact of the Tier 4 regulations on business premises.

Restricted Businesses and Services

In a nutshell

Part 3 of the new Schedule 3A concerns closure of, and restrictions on, businesses. In a nutshell, non-essential retail must close but essential retail remains open. Leisure, sports and entertainment venues must close. Hospitality venues must close with the exception of providing food and drink for takeaway until 11pm, and click and collect and delivery services thereafter. Indoor attractions must close though outdoor grounds can stay open. Personal care facilities must also close. Community centres and halls must close except for a limited number of exempt activities, as set out below. Libraries can also remain open to provide access to IT and digital services - for example for people who do not have it at home - and for click-and-collect services.

In more depth

A person responsible for carrying on a restricted business, or providing a restricted service, in the Tier 4 area must “cease to carry on that business or provide that service”.

The following restricted businesses and services must cease trading without exception (unless they were to reconstitute themselves as a non-prohibited type of venue):

Nightclubs (etc), SEV’s, Shisha bars

Nightclubs, dance halls, and discotheques.
Any other venue which: (a) opens at night, (b) has a dance floor or other space for dancing by members of the public (including venue members), and (c) provides music, whether live or recorded, for dancing.
Sexual entertainment venues and hostess bars;
Any business (e.g. shisha bars) which provides, whether for payment or otherwise: (a) a waterpipe to be used for the consumption of tobacco or any other substance on the premises, or (ii) a device to be used for the recreational inhalation of nicotine or any other substance on the premises.

Indoor facilities

This eclectic mix of indoor facilities must not operate:

Dance studios, fitness studios, gyms, sports courts, swimming pools.
Playgrounds, soft play centres or soft play areas.
Other indoor leisure centres or facilities, including indoor games, recreation and entertainment venues.
Casinos, betting shops, bingo halls, amusement arcades, including adult gaming centres;
Bowling alleys and skating rinks.
Indoor riding centres.
Cinemas, theatres, and concert halls.
Circuses.
Water parks and aqua parks, theme parks, fairgrounds and funfairs, adventure parks and activities, aquariums, and zoos (including safari parks) animal attractions at farms, wildlife centres (and any other place where animals are exhibited to the public as an attraction), and model villages.
Kitchen, bathroom, tile and glazing showrooms.
Museums and galleries.
Indoor attractions at visitor attractions such as: sculpture parks, landmarks (including observation wheels or viewing platforms), botanical or other gardens, biomes or greenhouses, stately or historic homes, castles or other heritage sites.
Visitor attractions at film studios.
Conference centres and exhibition halls (so far as they are used to host conferences, exhibitions, trade shows, private dining events or banquets, other than conferences, trade shows or events which are attended only by employees of the person who owns or is responsible for running the conference centre or exhibition hall).
Spas, tanning salons, nail salons, beauty salons, hair salons and barbers, massage parlours, tattoo and piercing parlours.
Carpet stores, showrooms and other premises, including outdoor areas, used for the sale or hire of caravans, boats or any vehicle which can be propelled by mechanical means.
Car washes (except for automatic car washes).
Auction houses (except for auctions of livestock or agricultural equipment).
Outdoor markets (except for livestock markets, stalls selling food and any other essential retailer).

Exceptions

With some minor modifications, familiar exceptions apply to the restrictions on the use of premises and businesses, including those relating to:

Premises used for the making of a film, television programme, audio programme or audio-visual advertisement.
Essential voluntary or urgent public support services (e.g. food banks, blood donation sessions).
Facilities for training by elite sportspersons.
Indoor fitness and dance studios, and skating rinks by professional dancers and choreographers.
Supervised activities for children or disabled persons at indoor gyms or indoor sports facilities (etc.).
Theatres and concert halls for formal education or training, rehearsals, or performances without an audience for broadcast or recording purposes.
Premises used for making deliveries in response to orders received through a website, by phone or text message or by post (e.g. Amazon delivery centres).
Purchasers who collect goods that have been pre-ordered provided the purchaser does not enter inside the premises to do so.

Pubs, bars, restaurants, social clubs, cafes and canteens

On sales

As with Tier 3, a person responsible for carrying on a restricted business must close any premises (or that part of it) in which food or drink are provided for consumption on the premises.

In addition to pubs, bars, restaurants, social clubs, cafes and canteens (with certain exceptions e.g. hospital cafes), this restriction also applies to hotel dining rooms and bars. However, food or drink provided by a hotel or other accommodation as part of room service is not to be treated as being provided for consumption on its premises.

References to food or drink being for consumption on premises include references to consumption on an adjacent area where: (a) seating is made available for its customers (whether or not by the business or the provider of the service), or (b) which its customers habitually use for consumption of food or drink served by the business or service.

Exceptions cater for users of motorway service areas, airports (and on airplanes), maritime ports, and international rail terminals.

Off sales

Subject to the important exceptions discussed below, the restrictions also apply to businesses providing food or drink prepared on the premises for immediate consumption off the premises, but do not include:

Supermarkets.
Convenience stores.
Corner shops and newsagents.
Pharmacists and chemists.
Petrol stations.

Premises, such as restaurants, pubs, bars, social clubs, cafés or canteens are, however, permitted to sell food or drink (whether alcoholic or non-alcoholic) for consumption off the premises between 05:00 – 23:00hrs.

During the later hours, between 23:00 – 05:00hrs, premises may sell food or drink (alcoholic or non-alcoholic) only by:

Making deliveries in response to orders received through a website, by telephone of text message, or by post.
Providing food or drink to a purchaser who collects the food or drink that has been pre-ordered (by a means mentioned above), provided the purchaser does not enter inside the premises to do so, or
Providing food or drink to a purchaser who collects the food or drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle (e.g. a drive-thru facility).

Licensing Act 2003: off sales extensions

For the purposes of sections 172F to 172J of the Licensing Act 2003, where a restricted business or restricted service is carried on from, or provided at, licensed premises, the premises are to be treated as open for the purposes of selling alcohol at any time when the premises licence for those premises would, but for paragraph 11(1) of the Tier Regulations, authorise the sale by retail of alcohol for consumption on the premises.

Holiday accommodation

Hotels, hostels, B&Bs, holiday apartments (etc.), campsites, caravan parks, boarding houses, canal boats must cease to carry on that business. However, certain exceptions are specified in cases including where the accommodation is used by people:

Unable to return to their main residence.
As their main residence or during a house move.
In order to attend a funeral or life commemorative event.
Self-isolating.
For work purposes.
For education and work training purposes.
For refuge
Any purpose requested by the Secretary of State or a local authority.

Goods for sale businesses, libraries, community centres & offices

Other than premises specified as permitted to remain open (set out below), premises offering goods for sale or for hire in a shop, or providing library services (subject to some exceptions), must cease to carry on that business or provide that service except:

By making deliveries in response to orders received through a website, by telephone of text message, or by post,

Or,

To a purchaser who collects goods that have been pre-ordered (by a means mentioned above), provided that the purchaser does not enter inside the premises to do so

This restriction does not prevent any business from continuing to provide hot or cold food for consumption off the premises, or goods or services to the homeless, or to open the premises for the purposes of making a film, television programme, audio programme or audio-visual advertisement.

Community centres must close, unless for a specified purpose including: for essential voluntary or urgent public support services (e.g. food banks), for education or training or support groups, registered childcare, weddings, funerals or commemorative events, voting or election counts.

Unless otherwise specified, other service providers, including, of utmost importance, lawyers’ offices, can theoretically remain open since they are not restricted businesses and do not offer “goods” for sale (assuming the legal advice proffered by solicitors and barristers is not properly to be considered as “goods”). However, this is subject to the important requirements relating to people movement and gatherings. It must be reasonably necessary for those attending the office to do so for work purposes and where it is not “reasonably possible” for the person to work, or to provide those services from home. (The guidance suggests that: “you can leave home for work purposes, where your place of work remains open and where you cannot work from home (including if your job involves working in other people’s homes)”. The ability to work remotely from home, increasingly honed by us all since March 2020, may impact on the statutory test of reasonableness.

Other premises that can remain open

Essential businesses and venues can remain open in Tier 4, namely:

Food retailers, including food markets, supermarkets, convenience stores and corner shops.
Off licenses (including, presumably, correctly spelt “off-licences”).
Licensed shops selling alcohol (including breweries).
Pharmacies (including non-dispensing pharmacies) and chemists.
Newsagents.
Animal rescue centres and animal boarding facilities.
Building merchants and suppliers of products and tools used in building work and repairs.
Petrol stations.
Vehicle repair and MOT services.
Bicycle shops.
Taxi or vehicle hire businesses
Banks, building societies, credit unions, short term loan providers, savings clubs, cash points, undertakings which by way of business operate currency exchange offices, transmit money (or any representation of money) by any means or cash cheques which are made payable to customers.
Post offices.
Funeral directors.
Laundrettes and dry cleaners.
Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health.
Veterinary surgeons and pet shops.
Agricultural supplies shops.
Storage and distribution facilities, including certain delivery drop off or collection points
Car parks.
Public toilets.
Garden centres.
Automatic car washes (but not hand car washes).
Mobility and disability support shops.
Businesses selling or supplying natural Christmas trees (no doubt as a Xmas balm to one and all).

Conclusion

Have a Merry Christmas and a Happy New Year. If work, and regulations, permit I expect we have all earned ourselves a little break to reacquaint ourselves with our families and the wonderful, though changing, world beyond COVID regulations.

Gary Grant is a barrister at Francis Taylor Building.