ISPs and comms providers: can I still go to the office / data centre / open the shop?

This blogpost relates specifically to the regulations in place in England. If you are not in England, check your local regulations.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force at 13:00 on 26th March 2020, and they represent — in my view, at least — some of the most stringent restrictions on civil liberties that we've ever had under English law.

Little wonder, then, that various people involved in running ISPs, comms services, and related tech businesses, have asked me if they're still allowed to go to work / run their businesses.

The regulations are here, and they are worth reading in full. (They're only short.)

When did these start, and for how long do they continue?

These rules came into force at 13:00 on 26th March 2020, and they end, well, when the Secretary of State says that they end, or automatically on 26th September 2020.

The Secretary of State must review the restrictions at least once every 21 days, and they must terminate any restriction as soon as they consider that that restriction is no longer necessary to stop the spread of coronavirus.

Right now, we don't know how long they'll continue, or if they'll run until the regulations themselves cease to apply on 26th September.

You must close physical shops, unless you're using them solely for distributing remote orders

ISPs and other comms providers are not on the list of businesses which must cease to trade (Schedule 2 Part 2), nor are the rules around food/drink establishments relevant.

This leaves Regulation 5. Regulation 5 applies only to businesses "offering goods for sale or for hire in a shop" (or those providing library services, but let's ignore that).

If you have a physical store, you cannot continue to sell from it, and you need to close it to customers.

If you need to use it as your base for handling online, phone, or post orders, you can still use it for that purpose (and only that purpose).

Online shops, and their backend infrastructure such as warehouses, are not affected by this regulation.

You can only go to the office, warehouse, data centre, customer premises etc. if it is not reasonably possible for you to work from home

The rules on business closure do not apply to offices, data centres, or warehouses.

The regulations do, however, contain restrictions on everyone's movement. The general principle is that, during the emergency period, no-one can leave the place where they are living without reasonable excuse. Basically, a mandate to work from home if you can.

Because of this, whether you shut your office or not, you can only go into work or another work-related site, or visit customer premises, if you have a "reasonable excuse" to do so.

The regulations set out a non-exhaustive list of "reasonable excuses". This means that, if you fall within one of them, you automatically have a valid "reasonable excuse". But even if you don't fall within one of them, you may still have a reasonable excuse — it's just that it's up to you, if challenged, to show that you have an excuse and that it's a reasonable one.

It is expressly a "reasonable excuse" if someone needs "to travel for the purposes of work ... where it is not reasonably possible for that person to work ... from the place where they are living".

It's up to you to decide if it is "reasonably possible" for you to work from home or not. This will turn on the specific facts of your situation, which is just a fancier way of saying "it depends".

(It's perhaps worth noting that, over the weekend, some police forces seemed to be enforcing rather expansive interpretations of the restrictions, inhibiting conduct which, on the face of the law at least, was lawful, so make sure you have done your thinking ahead of time, and be prepared to explain, credibly, why you are travelling.)

In some cases — for example, you need to interfere physically with a piece of kit and it cannot reasonably wait indefinitely, you need to ship out online orders from your warehouse, or you are required to do something from a particular location for security reasons — you are more likely to be able to demonstrate that you have a reasonable excuse than, say, you just prefer working somewhere with air conditioning or without your spouse breathing down your neck.

What happens if I don't comply with the rules?

In the immortal words of the UK's Care Quality Commission:

"don’t be a dick".

(At time of writing, their tweet is still online.)

However, from a legal point of view, if you open your shop when you are not permitted to do so, and you don't have a reasonable excuse, or if you leave home when you are not permitted to do so, you commit a criminal offence.

This is punishable by a fine. Directors are personally liable too, if a company commits the offence with that director's "consent or connivance".

You could also be served with a fixed penalty notice by the police.

In the case of opening your shop unlawfully, the police are also permitted to "take such action as is necessary" to enforce the shut down.

If you leave home when you are not permitted to do so, you can be told to go home, and the police can use "reasonable force" to take you home if necessary to do so.

You must still satisfy your general health and safety duties

Even if these regulations do not require you to cease trading, you've still got duties to staff and others under the health and safety framework.

In a nutshell, you must ensure "so far as is reasonably practicable" the health at work of your employees, and that of other people who may be affected by your business are not, as a result of that, exposed to risks to their health or safety.

You need to consider whether whatever measures you have put in place to protect health meet those duties.

For example:

  • Have you set up your working arrangements in such a way that staff are not in close proximity of each other, if that's reasonably achievable? (i.e. can you ensure that everyone is at least 2m from everyone else?)
  • Have you issued appropriate personal protective equipment?
  • Have you checked whether people present at a site you are asking an employee to visit are (or should be) in self-isolation?

Basically, even if you are not prohibited from trading, you still need to look after your staff and others who might be affected by your business, and that may entail enabling people to work from home anyway.

Need to discuss how this applies to you?

Get in touch. Don't visit us in person, obviously.