The Legal Interpretation of Due Diligence: As clear as the ever changing COVID-19 requirements

I have found it interesting over the recent months and weeks observing how different establishments, such as restaurants, shops and bars, have interpreted the government guidelines put in place to keep us all as safe as possible during this global pandemic.

You would hope that everyone serving the public has put considerable thought into their assessment of risk but it is curious therefore how establishments who seemingly appear similar in size and nature have put significantly different measures in place.

The rules, regulations and guidance put in place and published by the Government and governing bodies to address COVID-19 have certainly been ‘interpreted’ by individuals and businesses differently. Often there are 2 perceptions of the law, either that it is entirely black and white or many shades of grey, and truthfully in practice, I have found there are times it can be both.

By way of example, when you consider food safety offences, the prosecuting body (ordinarily the Health & Safety Executive (HSE) or local authority) will usually have to demonstrate that an act occurred (sometimes causing harm although not always required) and that the defendant was at fault or negligent. However, a defendant can defend themselves by establishing the defence of due diligence.

In order to successfully rely on the defence of due diligence, the defendant must be able to demonstrate that all reasonable precautions were taken. The interpretation of what is ‘reasonable’ can be interpreted differently and that is why keeping a ‘paper trail’ is of the utmost importance.

Whilst it is often easy to formulate decisions or assess risks in our own head, when trying to prove defences such as due diligence, having evidence to demonstrate a thought process or document meetings where risks are discussed can be invaluable, even if that shows you had contemplated a certain risk but disregarded it as irrelevant to your business.

During these turbulent times, it is easy for things to be overlooked or go unrecorded and I hope this serves as a reminder to check your records are up to date and in order.

If you have been meaning to get round to doing this for a while, do it today. Why leave yourself open to any adverse legal consequences should something entirely unforeseen happen in your business tomorrow and if you need any assistance with ongoing compliance, we would be happy to discuss how we could add value to your business.

To get in touch, please contact Charlotte Hunt or any member of the Regulatory Team.


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