Advocacy by Brodies – do the courts care if you breach guidance?

The Dominic Cummings story had many people offering their views on whether the law had been breached, the UK government guidance had been breached, or whether Mr Cummings had, in fact, done nothing wrong. I’m not going to open up that particular can of worms, but the matter did, I think, raise interesting questions around the interplay between guidance and the law.

As we move slowly into the next phases of the Scottish and UK Government’s response to COVID-19 , it is clear that lots of UK businesses are taking adherence to government and sector specific guidance very seriously. But it is not easy. Differences in the law and government guidance north and south of the border, coupled with varying approaches of industry bodies is causing some confusion. Businesses primarily want to keep people safe, but they also want to minimise the risk of claims or regulatory enforcement if they get it wrong.

What will the courts say?

We don’t have a bank of court opinions to fall back on when considering the question of what the court will make of breaches of COVID-19 related guidance, but we can, perhaps, draw some conclusions from their approach in other cases.

We know that a breach of guidance does not necessarily equate to a breach of the law – and it is the latter with which the courts are concerned when considering civil or criminal liability. That said, the courts have often derived assistance from relevant guidelines, protocols and advice to determine whether or not a breach of the law has occurred. That makes absolute sense. The application of the law often necessitates a degree of interpretation. There is also often a requirement to apply the concept of reasonableness.

In the COVID-19 context, we know that many employers who are re-opening workplaces are concerned about how they can reasonably keep workers and others safe. There are inevitably grey areas. Areas that require judgement. That’s where guidance comes in – to help businesses and professionals identify what they should be thinking about and doing to comply with the law.

Although the vast majority of guidance is not compulsory, some types do have a special legal status. For example, the Health & Safety Executive’s Approved Codes of Practice (ACoP). If a business has not followed an ACoP, it is likely it will be found guilty of a breach unless it can demonstrate that it complied with the law by taking other measures.

That is also relevant in relation to less formal guidance. If you decide to depart from particular guidelines or advice because you consider they are not appropriate in the circumstances, bear in mind a court will want to know that you can justify the rationale for that decision.

The opposite is also true. Blindly following guidance won’t necessarily mean that a business or professional is off the hook. Part of the reason for this is that guidelines may not cover every eventuality or situation that may arise. In the clinical negligence context, this was discussed in the recent English case of Sanderson v Guy’s and Thomas’ NHS Foundation 2020 EWHC 20 (QB) where it was said that:

“The Guidelines are useful so far as they go, but they are limited. The Guidelines do not provide a substitute for clinical judgement but must be interpreted by the clinician and then applied in the light of that judgement.”

So, it is worth remembering that common sense, experience and professional judgement may also be relevant to the courts in determining whether the law has been broken.