Retail businesses are starting to reopen as part of the government’s plans to ease the country out of lockdown. How should retailers go about preparing to make a return to our high streets and shopping centres?

Under the timeline announced by the prime minister, outdoor markets and car showrooms were allowed to reopen from 1 June 2020. Other non-essential retailers are expected to be permitted to open from 15 June, providing they meet the government’s five tests which include undertaking a Covid-19 risk assessment and putting adequate social distancing measures in place. When DIY stores were permitted to reopen in mid-April and garden centres followed suit from 13 May, we saw surges of shoppers queuing in droves. Will the same be the case for “non-essential” retailers?

Clearly, the environment in which retailers will be operating will be very different. Not only do they have to comply with government guidance detailing the health and safety measures they must take in order to minimise the risk posed to staff and customers, but they will also have to respond to changes in consumer behaviours. There is likely to be a trend in retailers embracing new technologies which could bolster their sales when they reopen – for example, virtual customer service, apps to bring products to life demonstrating how they fit or work whilst at the same time minimising handling of products, footfall monitors linked to digital displays which can show queuing times and the number of customer instore, virtual queuing etc.

Health and safety obligations

Employers are subject to various legal health and safety obligations including:

• Ensuring staff receive training, information, instructions and supervision which allow them to work safely.
• Keeping any place of work under the employer’s control well maintained, to ensure it is safe to work in and has safe routes for access and exit.
• Providing a safe working environment with adequate facilities for welfare at work.
• Providing and maintaining safe plant and systems of work.
• Ensuring that articles and substances are safely used, handled, stored and transported.
• Preparing and regularly revising a written health and safety policy and informing employees of its existence and of any changes to it.
• Not charging their staff for anything done or provided for the purposes of complying with health and safety law.

Our recent articles on establishing a return to work plan and FAQs on managing a safe return to work provide more detail on employers’ health and safety obligations in the Covid-19 context.

A failure to comply with these legal duties can have potentially grave consequences. The Health and Safety Executive and local authorities have powers to issue enforcement notices to require compliance, impose fines or bring criminal proceedings which may result in imprisonment.

Lessons from food retailers staying open (and from other countries)

Food retailers have been permitted to remain open throughout the lockdown. Supermarket giants have had to adapt quickly to implement health and safety measures, some of which can potentially be transposed to the wider retail sector. In addition, several countries are ahead of the UK and have already begun easing the restrictions for retailers generally.

From these developments, we can begin to see various trends developing for limiting the risk of infection among customers and staff:

• Capacity limits: Restricting the number of customers in the store at any one time. Countries including Poland and United Arab Emirates are limiting the number of customers permitted in shops to ensure that they have space to socially distance. In Spain, customers have been required to make a reservation in order to shop.
• Phased reopening: In Germany, smaller shops were allowed to open first followed by stores with a larger square footprint.
• Altering opening hours: Extending opening hours to reduce queues in and out of stores and encouraging customers to visit during the working day if possible. (In Iraq and Thailand, in contrast, stores are required to operate reduced hours.)
• Extra measures for vulnerable people/key workers: For example, designating the first hour of opening or other times solely for those who are vulnerable or are key workers.
• Physical barriers: Perspex safety screens, for instance, have been installed at many supermarket checkouts and petrol-filling stations.
• Minimising contact: Requesting that customers use self-checkouts and contactless payment methods and closing areas where customers/staff interactions are increased (e.g. fresh-food counters). Asking customers to bring their own bags.
• Increased hygiene measures: Most countries have imposed requirements for more regular and stringent cleaning and hygiene measures.
• Personal Protective Equipment (PPE): While use of this is generally not mandatory in the retail sector, facemasks are encouraged in several countries and customers in Poland are required to wear disposable gloves. In the Czech Republic, wearing a mask outside the home is mandatory.
• Clear signage: Installing clear floor markings to show one-way systems and two-metre distance markings to help customers maintain social distancing.

Identifying risks and practical steps for reducing them

The law requires retailers to consider the specific hazards prevalent in their workplace, who may be affected and the measures which should be taken to minimise the risks. This means each business’s reopening will be different depending on the specific context, the areas identified in its risk assessment and matters raised in consultation with staff.

Nonetheless, from experiences in other countries, and of supermarkets operating in the UK, there are some universal, practical steps that we would recommend retailers to consider implementing over the coming weeks. These include:

• Reducing capacity of stores, so staff and customers can reasonably follow social distancing guidance. Depending on the nature of the store, specific opening hours for vulnerable people and key workers may also be appropriate, to reduce the risk to them or to enable them to shop. Consider whether customers should have to make appointments in advance and whether to require customers to shop on their own (wherever possible).
• Putting appropriate queue systems in place. It would be wise to liaise with neighbouring shops to agree protocols and systems that can best achieve this.
• Minimising contact between staff and customers throughout the transaction process. This could involve, for example: closing fitting rooms; suspending forms of customer service that cannot be undertaken within social-distancing guidelines; asking customers to use contactless methods of payment; and creating drop off points for collections and returns. Where customers already know what they wish to purchase, kiosks could be set up to enable them to collect their goods without entering the store.
• Minimising contact between customers and products. For example: creating different display methods to limit how frequently customers handle products; quarantining products that have been touched/tried on by customers; and keeping display merchandise and stock that is tried on separate.
• Protecting staff and customers by making physical changes to premises, such as: Perspex safety screens at checkout points; one-way systems and “lay-by” systems (i.e. lanes for browsing and for moving quickly through an aisle); and designating areas from which staff can provide customers with assistance while adhering to social-distancing measures.
• Hygiene measures: Installing hygiene stations where washing facilities and/or hand sanitiser are provided for staff and customers. Wiping down trolleys, baskets etc after each use.
• Increasing the frequency of cleaning premises, products and other high-contact surfaces.
• Providing staff with face-coverings and gloves (although this is not required under government guidelines).
• Educating staff and customers on the need for social distancing. This could include: creating social-distancing “champions” to demonstrate good practice to customers before they enter the store and ensure it is adhered to inside; using visual aids to explain protocols that have been adopted; floor markers to demonstrate the two-metre distance; and signage to remind customers and staff of the need to socially distance at all times.
• Monitoring staff health and having procedures in place to identify staff who display symptoms of or contract Covid-19. Retailers may decide to operate a staff team rotation system to minimise the risk of cross-contamination.
• Ensuring staff can maintain social distancing during their break times – staggering breaks may be one way of achieving this.
• Temperature testing: installing non-touch temperature testing for staff and customers at store entrances.Businesses will need to consider the data protection implications of this. See our article on workplace testing.
• Measures to protect staff from abuse from customers who are frustrated with lengthy queues and limitations on availability of products.

Authored by Shalina Crossley (Partner, Lewis Silkin) and Emma Langhorn (Associate, Lewis Silkin).

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