COVID-19: Level 5 - Key Issues for Retailers - Arthur Cox
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LITIGATION, DISPUTE RESOLUTION AND INVESTIGATIONS
CORPORATE AND M&A
EMPLOYMENT
COVID-19: Level 5 -
Key Issues for Retailers
January 2021
Ireland is again at Level 5, the highest level of the Government’s
Resilience and Recovery 2020-2021: Plan for Living with COVID-19.
Retailers across the country are getting to grips with the latest
emergency measures to curtail the spread of COVID-19 and
the kind of trading that is and is not permitted under Level 5.
Under the latest Level 5 Regulations it permitted categories of essential retail entered Level 5, states that retailers with
is an offence for people to leave their outlets, it should be closed to the public. It a mixed retail offering which have discrete
homes without reasonable excuse. The is an offence for the controller/occupier/ spaces for “essential” and “non-essential”
Regulations set out a non-exhaustive list manager/person in charge of a non- retail should make arrangements for the
of what might be a “reasonable excuse”, essential retail outlet to allow workers separation of relevant areas. This means
and this list includes: or members of the public access to that that in the case of a retail outlet selling,
premises. A person found guilty of this for example, both food (essential) and
• going to an essential retail outlet for the offence may be liable to a fine of up to clothing (non-essential), arrangements
purpose of obtaining items or accessing €2,500 or to 6 months imprisonment or should be made to prevent the public
services for yourself, someone else both. However, it is still possible for non- from accessing the clothing section of
who lives with you or for a vulnerable essential retail outlets to operate online the outlet. Retailers with a mixed retail
person; and sales or a ‘click and deliver’ service only. offering will therefore need to consider
• working in an essential retail outlet. As of 8 January, it is no longer possible whether and how they can reconfigure
to operate a ‘click and collect’ service. their store layout to separate the essential
Retailers may, however, honour ‘click and from the non-essential and to allow
WHAT IS “ESSENTIAL” RETAIL collect’ orders placed before 8 January. access only to essential items.
THAT CAN REMAIN OPEN? (see below).
There are certain categories of “essential WHAT ARE THE RULES FOR
CAN RETAILERS CONTINUE TO
retail outlets” that are permitted to remain RETAILERS WITH A MIXED RETAIL
SELL ONLINE?
open. OFFERING?
Yes, all retailers, including those deemed
If your business falls within one of the Under the Regulations, it is an offence for non-essential, may offer online or
categories on this list, you may keep your the controller/occupier/manager/person telephone sales for delivery. Delivery of
premises open to the public, to the extent in charge of an essential retail outlet to online or remote orders via courier or
set out in the Regulations. Any business allow members of the public access to postal services is also permitted.
that remains open must continue to part of the premises that is not operating
comply with all Government and public solely as an essential retail outlet. A Retailers will need to carefully manage
health guidance, including in relation to person found guilty of this offence may the operation and implementation of
the implementation of physical distancing be liable to a fine of up to €2,500 or to 6 online or remote sales to ensure that they
measures and the wearing of face- months imprisonment or both. are carried out in accordance with the
coverings. Regulations and public health guidance on
Government guidance issued in October physical-distancing.
If your business does not fall within the 2020 when the country previously
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COVID-19: Level 5 - Key Issues for Retailers
WHAT MEASURES SHOULD Exposure to COVID-19 presents an and adapt processes quickly where gaps
RETAILERS TAKE TO PROTECT additional health risk to employees arise. Retailers are therefore advised to
EMPLOYEES? and other persons at a workplace and frequently review the health and safety
Employers have general duties to employers are required to take additional measures in place in their workplace, and
take steps and implement measures measures to safeguard its employees in particular to address any concerns
to safeguard the safety, health and and others in order to discharge their raised by employees. Our briefing on the
welfare at work of employees and others duties under the 2005 Act. The Work Work Safely Protocol is available here.
at a workplace, as far as reasonably Safely Protocol (November 2020), which
was a revision of the Return to Work Retailers should be mindful that there are
practicable, under the Safety, Health
Safely Protocol (May 2020), sets out the protections in place for employees that
and Welfare at Work Act 2005. These
additional measures that employers raise concerns about health and safety in
obligations are in addition to common law
should take in this regard. Central to the workplace. Our briefing sets out these
duties of care.
the Protocol is an obligation to respond protections in detail here.
ESSENTIAL RETAIL OUTLETS • Outlets providing for the repair & maintenance of
• Outlets selling food or beverages on a takeaway basis, or mechanically propelled vehicles or bicycles & any related
newspapers, in non-specialised or specialised stores, on a facilities (including tyre sales and repairs);
retail/wholesale basis;
• Any other retail outlet that operates an online or other
• Markets that wholly or principally offer food for sale; remote system of ordering goods delivery;
• Outlets selling products necessary for the essential upkeep • Outlets selling food or beverages, on a retail/wholesale
and functioning of residences & businesses, on a retail/ basis, in a non-specialised or specialised outlet, insofar
wholesale basis; as they sell food or beverages on a takeaway basis or
for consumption off the premises; insofar as they are
• Pharmacies, chemists & retailers or wholesalers providing staff canteens operating for the exclusive use of persons
pharmaceuticals or pharmaceutical or dispensing services, working on or at a particular premises; or hotels or similar
on a retail/wholesale basis; accommodation services insofar as they sell food or
• Outlets selling health, medical or orthopaedic goods in a beverages for consumption on the premises in accordance
specialised outlet, on a retail/wholesale basis; with the Regulations;
• Fuel service stations & heating fuel providers; • Optician & optometrist outlets;
• Outlets selling essential items for the health & welfare • Outlets providing hearing test services or selling hearing
of animals, including animal feed & veterinary medicinal aids and appliances.
products, pet food, animal bedding & animal supplies, on a
retail/wholesale basis;
• Laundries & drycleaners; The following are “essential retail” insofar as they offer
services on an emergency basis only:
• Banks, post offices & credit unions;
• Outlets selling office products & services for businesses or
• Outlets selling safety supplies (including work-wear for relevant persons working from their homes, whether
apparel, footwear & PPE), on a retail/wholesale basis; on a retail or wholesale basis;
• Hardware outlets, builders’ merchants & outlets that • Outlets providing electrical, information & communications
provide, on a retail/wholesale sale basis, hardware technology & telephone sales, repair & maintenance
products necessary for home & business maintenance or services for places of residence & businesses.
construction & development; sanitation & farm equipment;
or supplies & tools essential for farming or agriculture
purposes;
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COVID-19: Level 5 - Key Issues for Retailers
KEY CONTACTS
Eve Mulconry Gavin Woods Deirdre O’Mahony Sinead Reilly
Partner Partner Partner Professional Support Lawyer
+353 1 920 1155 +353 1 920 1136 +353 1 920 1058 +353 1 920 1151
eve.mulconry@arthurcox.com gavin.woods@arthurcox.com deirdre.omahony@arthurcox.com sinead.reilly@arthurcox.com
John Matson Cian McCourt Maeve Moran Suzanne Kearney
Partner Partner Partner Professional Support Lawyer
+353 1 920 1173 +353 1 920 1446 +353 1 920 1029 +353 1 920 1090
john.matson@arthurcox.com cian.mccourt@arthurcox.com maeve.moran@arthurcox.com niav.ohiggins@arthurcox.com
Cian Beecher Sarah Lawn
Partner Associate
+353 1 920 1193 +353 1 920 1769
cian.beecher@arthurcox.com sarah.lawn@arthurcox.com
This publication is provided for your convenience and does not constitute legal advice.
This publication is protected by copyright.
© 2020 Arthur Cox LLP
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