Choose Site

LawFlash

Top Questions for Retailers in the United Kingdom Amid COVID-19

Retail Did You Know?

August 27, 2020

Key questions and issues facing the UK retail sector, an industry that has been acutely impacted by the coronavirus (COVID-19) pandemic, include mitigation strategies, reopening in line with government guidance, and future expected challenges.

What primary steps are retailers in the United Kingdom taking right now?

COVID-19 Mitigation Strategies

A number of UK retailers are reducing the size of their bricks-and-mortar portfolios and/or seeking to renegotiate terms of leases with landlords (including, in many instances, retailers seeking a move from fixed to turnover-based rental payments) in response to the COVID-19 pandemic. Prominent UK High Street retailers, including John Lewis & Partners, TM Lewin, and Zara, have all announced the closure of a significant number of their bricks-and-mortar stores. A number of UK retailers have entered into company voluntary arrangements (CVAs) with their creditors to reduce their liabilities, including recently well-known UK High Street retailers AllSaints and Hotter Shoes.

While the UK government permitted all nonessential UK retailers to reopen their bricks-and-mortar stores on June 15, 2020, after the lockdown, the British Retail Consortium has reported that UK retailers continue to enhance their online offerings and seek ways to mitigate the depressed revenue in the early part of 2020 caused by the COVID-19 pandemic. UK retail returned to growth in June 2020 as UK retail sales increased 3.4% year on year. This was driven by online sales, which were three times the yearly average and increased 48.2% year on year.

Furlough

The UK government introduced a Job Retention Scheme in March 2020. The purpose of the scheme was to encourage employers to “furlough” staff and keep them on payroll rather than dismiss them during the COVID-19 pandemic. The scheme was available to any UK employer; under the scheme, the UK government pays 80% of a furloughed employee’s wages up to a maximum of £2,500 (approximately $3,100) per month. More than 160,000 UK retailers participated in the scheme.

The scheme is still continuing although the UK government’s contributions step down to 70% of wages, up to a cap of £2,187.50 (approximately $2,800), in September 2020 and to 60% of wages, up to a cap of £1,875 (approximately $2,300), in October 2020.

From August 2020, the UK government is no longer covering employers’ national insurance contributions and pension contributions for furloughed employees—these must be met by employers. In light of the ability of UK retailers to open their bricks-and-mortar stores coupled with the increase in financial contributions that UK employers must now make to their employees, it is reported that UK retailers are carefully considering the size of their workforces and whether to make redundancies.

Cash Flow

According to a study undertaken by the Confederation of British Industry, 8 in 10 of UK retailers had experienced some degree of cash flow difficulties during May 2020. This, and concerns about the impact of the COVID-19 pandemic, led UK corporates to draw down under their credit facilities at a record pace, with 130 companies in Europe and the United States reportedly drawing down at least $124.1 billion from their lenders during three weeks in March.

UK companies, including retailers, drew down significant amounts of capital under their revolving credit facilities (which, in some cases, were not usually drawn) as companies braced themselves to withstand the slowdown caused by the COVID-19 pandemic. UK corporates, including retailers, continue to hold onto cash from company loans on their balance sheets.

Are retailers allowed to open for in-store shopping?

Yes. The nonessential retail sector was permitted to open on June 15, 2020. Essential retailers including supermarkets and pharmacies were permitted to stay open during the lockdown period. All retailers are now allowed to open for in-store shopping, provided they do so in line with the following government guidance:

Risk Assessment

  • Retailers must carry out a COVID-19 risk assessment to identify measures to control the risks in the workplace. Retailers should display a notification in a prominent place, which shows workers and customers that it has assessed the risk and taken appropriate measures to mitigate any risks.
  • Retailers with fewer than five workers do not have to have the risk assessment in writing.
  • Retailers with more than 50 workers are expected to publish the results of their risk assessment on their website.
  • Retailers must consult with their health and safety representatives, or if there is not one, a health and safety representative chosen by its workers.

In-Store Shopping

The UK government has issued the following guidance for in-store shopping for UK retailers:

  • Face coverings have been compulsory for customers (not employees) in all retail premises since July 24, 2020.
  • The number of customers should be limited.
  • One-way flow systems and floor markings should be implemented so that social distancing guidelines can be followed.
  • Screens should be used to create a physical barrier at workstations such as tills.
  • Customers should be encouraged to use hand sanitizer as they enter the premises.
  • Retailers should manage outside queues to ensure they do not cause risk to others.
  • Public toilets should be kept open but carefully managed to reduce the risk of COVID-19 by keeping them well ventilated and cleaned regularly.
  • Work areas and equipment should be cleaned frequently between uses.
  • Customer fitting rooms should be closed wherever possible.
  • The frequency of deliveries should be reduced and noncontact deliveries should be used wherever possible.
  • As far as possible, workers should be split into teams or shift groups, and a record of staff shift patterns should be retained for 21 days to assist the NHS Test and Trace service if needed.

Are there social distancing requirements/limitations of patrons and employees?

Yes. The UK government announced that, with effect from July 4, 2020, where it is not possible to keep a two-meter distance, people should keep a social distance of "one meter plus." This means that people should remain one meter apart while taking mitigations to reduce the risk of transmission.

All UK government return to work guidance has been updated to reflect the change to the two-meter rule, but employers should still make every reasonable effort to enable employees to work remotely. This will apply to the United Kingdom generally, including nonessential retailers that have already reopened in line with previous guidance.

Are masks required for all?

Customers

Since July 24, 2020 the government has required face masks to be worn in shops, supermarkets, and indoor shopping centers. Shops are required to encourage customers to take reasonable steps to promote compliance with the law. Shops can deny entry to anyone not wearing a face mask if they do not have a valid exemption.

Exempt Customers

The government has published a list of “legitimate reasons” for not wearing a face mask in locations where they are otherwise required. This means the following categories of people do not need to wear a mask: children under the age of 11, those who cannot wear a mask due to medical reasons, those who are avoiding harm or trying to escape a risk of harm, and individuals who need to take medication and where it is reasonably necessary to eat or drink.

Employees

The government has stopped short of making it a requirement that employees wear face coverings in workplaces due to the varied work environments in different industries. Face coverings are not required for shop staff, but they do need to follow employer guidance as described in “What are the health and safety requirements for employees?” below.

Is curbside pickup allowed?

The UK government confirmed at the end of April 2020 that “click and collect” services could continue to operate during the pandemic as long as customers did not enter stores. A number of nonessential retailers that have reopened and offer “click and collect” have reinstated the service.

What are the health and safety requirements for employees?

The UK government has not issued prescriptive health and safety requirements to UK employers but rather directed employers to take the following five practical steps to work safely:

  • Carry out a COVID-19 risk assessment, which includes a consultation with workers or the trade union.
  • Develop cleaning, handwashing, and hygiene procedures.
  • Take all reasonable steps to help people to work from home.
  • Maintain a two-meter social distance where possible and arrange a one-way traffic system where possible.
  • Manage transmission risk where the two-meter distance cannot be maintained.

What are the protocols for calling back to work employees who have been furloughed?

From July 1, 2020, employers have been able to bring furloughed employees back to work on a part-time basis, i.e., employees can return for any amount or time and any work pattern, while being on furlough leave for the hours not worked. This option is only available to employees who were furloughed for at least three weeks before June 30, 2020.

Employers can bring furloughed employees back at any time but they should give employees reasonable notice where possible. Employers are advised to discuss and consider any issues the employee may have such as childcare issues or healthcare concerns. Retailers must not discriminate when choosing who to bring back from furlough leave and the decision should be based on business needs. Extra caution should be taken when bringing vulnerable employees back to work.

What stimulus funds are available for retailers?

The UK government has made available a number of stimulus funding measures, in which UK retailers have been able to participate. These include the following:

COVID-19 Corporate Financing Facility (CCFF)

  • The CCFF is designed to support liquidity among larger companies, helping them to bridge disruption to their cash flow caused by the COVID-19 pandemic through the purchase of short-term debt in the form of commercial paper.
  • To be eligible, companies need to: (1) make a material contribution to the United Kingdom, (2) be investment grade rated (or equivalent) as at March 1, 2020, (3) not be PRA or FCA regulated, and (4) not be a public undertaking.
  • By the middle of May, the Bank of England reported that 230 businesses were approved as eligible to access the CCFF.

Coronavirus Business Interruption Loan Scheme (CBILS)

  • The CBILS is a scheme designed to provide financial support to smaller businesses affected by the COVID-19 pandemic.
  • Under the CBLIS, the UK government guarantees 80% of the amount of loans made to small and medium-sized enterprises, up to a maximum value of £5 million (approximately $5.9 million) per loan.
  • As of August 9, 2020, £13.41 billion ($17.5 billion) was approved in facilities under the CBILS.

Coronavirus Large Business Interruption Loan Scheme (CLBILS)

  • The CLBILS is a loan guarantee scheme to support the financing of large businesses with a turnover in excess of £45 million ($56.5 million) that are experiencing lost or deferred revenues, leading to disruptions to their cash flows, due to COVID-19.
  • Accredited lenders provide facilities, which may be a term loan facility, revolving credit facility, invoice finance facility, or asset facility for sub-£50 million ($63 million) sized facilities. For facilities in excess of £50 million ($63 million), the facility must be a term loan facility or revolving credit facility only. The UK government guarantees the payment of 80% of all amounts due (net of any recoveries) under the scheme facility. The borrower remains fully liable to repay the lender all amounts under the facility.
  • As of August 9, 2020, the value of approved facilities under CLBILS exceeds £3.4 billion ($4 billion).

Local Authority Grants

  • The Retail and Hospitality Grant Scheme is available to businesses in England in the retail, hospitality, or leisure sector where the “ratable value” of a company’s business property was under £51,000 ($64,000) on March 11, 2020. “Ratable value” means the open market rental value of UK properties based on an estimate by the UK’s Valuation Office Agency. The grant entitles eligible businesses to a one-off cash grant of up to £25,000 ($31,500) from its local council.
  • The Small Business Grant Fund is available to England-based businesses that occupied a property and were eligible for small business rate relief or rural rate relief. The grant entitles the business to a one-off cash grant of £10,000 ($12,500) from its local council.

Job Retention Scheme

  • As mentioned above, the UK government introduced the Job Retention Scheme in March 2020. The purpose of the scheme was to encourage employers to “furlough” staff and keep them on payroll rather than dismiss them during the COVID-19 pandemic. See more under “Furlough” in the question “What primary steps are retailers in the United Kingdom taking right now?” above.

    Business Rates Relief

  • The UK government announced in March 2020 a 12-month payment holiday for business rates for all retail, hospitality, leisure, and nursery businesses in England. The relief was effective from April 1, 2020.

Have retailers opened and then shut back down?

  • National level: No.
  • Local level: Yes. New regulations brought on July 18, 2020, give local and national governments additional powers to stop local transmission of the virus, including the power to close local retailers or whole sectors. For example, on June 29, Leicester, a city in the Midlands in the United Kingdom, was placed in a local lockdown and nonessential retailers were required to shut back down. The local authority is working with the government to safely reopen Leicester. This means that retailers in certain boroughs were permitted to open on July 18, 2020 and the remainder were able to reopen on July 24, 2020.
  • What are the most significant challenges UK retailers are likely to face in the next few months?

    Consumer Spending

    Total consumer expenditure in the retail sector remains depressed. Despite the increase in online spending and the increase in retail sales in June 2020, the UK retail sector is still depressed—fashion sales and High Street retailers are underperforming.

    Furlough Scheme

    From August 2020 there is a tapered reduction in the support the UK government will be offering UK employers participating in the furlough scheme, and there is a corresponding increase in the financial contributions required of each UK employer.

    The end of the furlough scheme has not yet been announced but is expected toward the end of the year, and this is forcing UK retailers to consider the size of their workforces. Certain UK retailers have made redundancies already, and it is reported that other UK retailers have been forced to consider redundancies and unpaid layoffs.

    Supply Chain

    The COVID-19 pandemic caused a huge disruption in the world’s supply chain. Factory closures in Asia and Europe during the early part of 2020 were felt by companies across the world during spring and early summer, and prompted stock availability issues for UK retailers. These issues are likely to continue to some degree given the increased restrictions in place in factories across Europe and Asia, meaning that such factories are not able to work at full capacity. A second wave and localized lockdowns in key manufacturing regions would mean further factory closures and disruption to global supply chains.

    Availability of Credit

    It is not expected that the UK government will announce any further stimulus measures at this time. As the lockdown measures continue to ease and societies and economies begin to reopen after months of closure, the markets are watching lenders’ credit activities and risk appetites with keen interest.

    Second Wave

    A number of experts warn of the risk of potential second waves of COVID-19. These may be localized or affect much larger areas. Both localized and more widespread lockdowns caused by second waves of COVID-19 are a risk to the UK retail sector, as they are to many global industry sectors.

    Trainee solicitor Sol Gelsomino contributed to this article.

    Coronavirus COVID-19 Task Force

    For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.

    Contacts

    If you have any questions or would like more information on the issues discussed in this Retail Did You Know?, please contact any of the following Morgan Lewis lawyers:

    London
    Pulina Whitaker
    Georgia M. Quenby
    Victoria Thompson
    James Mead