The fudged return to work campaign is a liability nightmare

Maciek Musialek/NurPhoto via Getty Images

Word has it that the government’s Covid-19 rules are confusing, contradictory and at times, nonsensical. Not so for James Chiavarini, the owner of family-run Italian restaurant Il Portico in south-west London, who has become somewhat of an expert in interpreting official messaging. His staff got through the dark days of lockdown and returned, encouraged by the government in July, to a workplace set up to cope with social distancing. According to him, the latest mandate is devastatingly clear: police your staff and ask them to act as bouncers if customers show up without masks — or risk fines and potential closure.
“It puts me in a position of being a doctor, a judge and a policeman,” Chiavarini says. His team currently collects customers’ details for track and trace, but doesn’t have the power to check whether they are right or not. “If somebody says their name is Saddam Hussein and they live in Baghdad, I don’t have the legal jurisdiction to say, ‘Show me your ID’.” He says these new rules would exacerbate matters, obliging them to confront customers who refuse to wear masks.

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Hospitality is an easy target because it’s considered a luxury for consumers, he claims. “For me it’s not considered luxury, because I have to pay my mortgage and feed my kids. Somebody has to suffer, and they chose it to be us.”
This week, prime minister Boris Johnson announced that businesses can now face fines of £10,000 or even be closed down for not complying with the government’s social distancing rules, and has imposed the compulsory use of masks in hospitality and retail, two of the hardest-hit sectors of the UK economy.
After weeks of encouraging people back to their workplaces and into eateries, the government has performed another u-turn that sent most office workers back home to Zoom, and put minimum-wage staff in pubs, restaurants and supermarkets in the eye of the storm.
The latest government data shows that ‘leisure’ (which includes bars, restaurants and any entertainment or sports venues) is the third most-common exposure category for the virus. With no change to England’s rule of six to clamp down on household transmissions, which are top of the list, workplaces have been asked to step up or shut down.

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But the government hasn’t clarified what business owners should do if staff members or customers claim they cannot wear masks for medical reasons, says David Jones, an employment barrister at St John’s Buildings. He accuses the government of being “very good at making public announcements of what they’re going to do before they’ve actually drafted the law”.
Under current measures, if a customer spots staff without their masks, it could cost them their jobs. The government is saying that if staff don’t follow the rules, then it is a disciplinary matter, he says, which could infringe on people’s human rights under current laws. “Whether or not they [employees] choose to wear a mask is still a matter for them,” he says.
Jones argues that retail and leisure in particular are staffed by a large number of workers who will experience great discomfort sitting behind checkouts, in kitchens or bars for hours on end wearing face masks, in exchange for minimum wage. “Enforcing it [wearing masks] is going to be an absolute nightmare,” he says. “Do I think it’s realistic? The short answer is no.”
But this is not the only problematic part of the government’s announcement. Johnson may have tried to pull the plug on the back to work campaign, but it’s too late. Businesses already spent millions on measures to make their offices Covid-secure, and are reluctant to go back to the way things were during lockdown. One survey before the u-turn found the average SME would have to spend almost £22,000 to bring everyone back, while large companies have spent far more transforming bigger office spaces and investing in logistics software to manage thousands of employees flocking back in.

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Business lobby groups have already stated that the prime minister’s u-turn is “extraordinarily reactive and extraordinarily disruptive”, and risks derailing an “already fragile” economic recovery as well as undoing any safety confidence built up with workers and consumers. In his announcement, Johnson said he was “sorry [the new restrictions] will hurt many businesses just getting back on their feet”, but warned that “significantly greater restrictions” could be imposed if people did not comply.
It would be good for businesses to have a plan and stick to it, but in England the messaging has been “radical”, ‘come back or lose your job’, says Paola Subacchi, founder of independent economic research service E-Economics. “You can unlock everything, but if people do not feel safe, they do not go back,” says Subacchi. “They might go back to work if they have to, they might send the children to school if they have to, but certainly they are not prepared to go out to a restaurant, or do things that implies being with other people and risk contagion.”
Those that started coming back in the last few weeks have already been put in a difficult position: now that workspaces have been adapted, some companies are claiming that it’s perfectly safe to come in, regardless of the government guidelines to stay at home. Some bosses are even asking people to return to the workplace and sign disclaimers to absolve their companies of any responsibility if they catch the virus there, Jones says.
Companies are also bracing themselves for an inevitable wave of whistleblowing claims from employees who are being told to come in and feel unsafe, he explains. In a very real way, the government’s latest measures opened the floodgates for crippling liability claims against companies if staff allow someone to enter an establishment without a mask, or if staff are caught without masks and there is an outbreak.
Insurers expect firms to take all reasonable steps to provide safe workplaces, reducing the risks of being held negligent for any illness or injury to staff or customers, according to a spokesperson for the Association of British Insurers.
The nerves are understandable: it took a High Court ruling to determine that companies forced to close during lockdown should be able to claim under most business interruption policies which mention an outbreak of a disease. Before then, insurers failed to pay out business interruption claims to small companies.
For small business owners like Chiavarini, the prospect of a liability claim — even an unsuccessful one — is devastating because of the additional stress it would put on his business. “God forbid somebody comes into the restaurant, they’re eating at the table and someone else is there not wearing a mask for medical reasons. They test positive for Covid-19 a week later, which results in the death of their grandmother. They then submit a claim to me for corporate manslaughter, because I let somebody in my restaurant who wasn’t wearing a mask. Would my insurance company uphold that claim? You see how quickly this can spiral?”
The big question is what will happen next, Chiavarini says. “We’re open tonight. We’ll open tomorrow. And we’ll continue to do that, hopefully for the next 52 years, but who knows?”
Natasha Bernal is WIRED’s business editor. She tweets from @TashaBernal
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