How do you party like it’s 20th May 2020?

Casting our minds back to a sunny evening in late May 2020 feels like a particular challenge during a chilly January more than 18 months later. What was happening at that time, and what were we allowed to do?

We are all too aware that the course of the pandemic can be plotted in ever changing rules and guidance. These provide a perfect aide memoire when personal recollections are anything but clear. Number 10, like all employers, must look carefully at the rules in operation at that particular time in order to determine the question of their own, or their staff’s, compliance.

20 May 2020

By 20 May 2020 the UK had been in lockdown for almost two months. Many businesses were closed, and the furlough scheme was in full swing. Strict rules on social distancing and working from home if “reasonably possible” had redrawn the way we lived. Looking forward, society was still over a month away from an announcement that “national hibernation” would come to an end.

What were the rules on gatherings?

The Prime Minister’s admission that he attended a drinks gathering with staff in the Number 10 garden on 20 May raises the question of what precisely was allowed at this time? We understand that up to 100 people were invited by email to make the most of the lovely weather and attend “socially distanced drinks”, and approximately 40 reportedly attended.

Since March 2020, legal restrictions have regulated many aspects of our day-to-day lives. In May 2020, the coronavirus regulations in force in England provided that gatherings of more than two people in a public place were prohibited. Failure to comply with these requirements without reasonable excuse was a criminal offence, risking a fixed penalty notice. There were a number of exceptions to this restriction, including “where the gathering is essential for work purposes”. Although no further definition of “essential” was provided, the language plainly set a high threshold.

That said, although this regulation makes plain the stringency of the rules the country was living under, 10 Downing St is not a public place. Strictly speaking this rule was not breached.

Another regulation in force at that time allowed people to leave home only in certain limited circumstances. This included leaving home to go to work if it was not “reasonably possible” to work from home. The Prime Minister may not have left “home” to attend the gathering, but other attendees may have done so. The law did not explicitly address what was permitted once at work: BYOB after work drinks were not clearly catered for in the regulations. The regulations had, however, been amended at the end of April 2020 to add that to “be outside” home was unlawful without a reasonable excuse, raising the question of whether the attendees needed to attend the party for work purposes, or if they should have been at home.

Many may feel that, regardless of the wording of the regulations, their true intention was not to accommodate such an event, or anything close to it. It is notable that when these rules were revised on 1 June 2020, even under these theoretically more relaxed provisions, outdoor gatherings – both public and private - of more than six people were prohibited. And on 17 April 2021, to which the spotlight has now turned, Step 2 restrictions prohibited indoor socialising except with your household or support bubble.

What was the guidance?

Although not legally enforceable in the same way as the regulations, there was government guidance in operation in May 2020 about workplace meetings. This said that all meetings and gatherings in the workplace should be minimised, only absolutely necessary participants should attend, and 2m separation should be maintained.

On that basis, the government’s own guidance will only have been complied with if the Number 10 “meeting” in the garden was “absolutely necessary”, all participants including his wife were “essential”, 2m distancing was maintained throughout and the sharing of objects (including wine bottles) was carefully avoided. On the facts publicly reported at the moment, this seems unlikely.

Similarly, guidance issued on 13 May 2020 provided that you could not visit the home of friends and family unless in exceptional circumstances (such as a medical emergency). Even if 10 Downing St was the Prime Minister’s home, social visits were not allowed.

Investigating the facts

The public has been told repeatedly that an investigation into this event is ongoing. It is, therefore, a little unusual that the main protagonist in the investigation has already provided an account of events (watched with interest by a fair proportion of the British population) that seems to provide little scope for the conduct to comply with the government’s own guidance.

Reports have also now emerged that Downing Street staff were advised by senior colleagues to “clean up” their phones and remove any messages implying that they attended or were aware of anything that could look like a party. The Information Commissioner is unimpressed and has issued a statement confirming that erasing, destroying or concealing information within scope of a Freedom of Information request, with the intention of preventing its disclosure, is a criminal offence. Although private employers are not subject to the freedom of information regime, attempting to cover up workplace wrongdoing is not only bad practice, it can cause considerable further damage if uncovered during a subsequent investigation.

The Boris defence?

Number 10 is not the only employer facing the prospect of having to sanction its leadership for allowing covid parties. In the case of Taylor v Borough Care Ltd, the Employment Tribunal (“ET”) considered whether the dismissal of a care home manager for attending a birthday party for a colleague (along with six more junior members of staff) was fair. The ET agreed that it was.

In circumstances not dissimilar to 20 May 2020 in the Number 10 garden, the employing care home determined that Ms Taylor had attended the party in breach of lockdown rules and without PPE. They decided that this brought the company into disrepute, and she was fairly dismissed for this reason.

The fact that Ms Taylor held a position of authority appears to have been a relevant factor in both the employer’s decision and the Tribunal’s reasoning. She had failed to inform authorities about the party and had breached infection control rules by both attending the party and not arranging for those present to undertake Covid-19 testing on their return to work. Her employer also considered that her own presence had endorsed the attendance by other more junior staff.

Holding a position of authority can justify an expectation of strict compliance with both legal requirements and workplace rules. The Tribunal found that the manager “ought to have been setting an example” and “ought to have tried to have stopped the party”.

How does this sit with the Prime Minister’s recent admissions? If this case been heard more recently, could Ms Taylor have tried to raise a “Boris defence” - by challenging the extent to which holding a position of authority can be a relevant factor in justifying a dismissal in these circumstances? As with many covid-related legal issues, these are untested waters and it remains to be seen whether this line of argument could hold up in an ET. Although the outcome of the investigation remains to be seen, it is certainly conceivable that the events of 20 May may hamper employers’ moral (if not legal) authority to discipline staff for breaches of covid rules.

Challenging questionable behaviour

There is no indication in either the Taylor case or the Number 10 situation that anyone in authority, or indeed more junior, sought to justify the decision to hold a party. As noted above, reports in the Number 10 case suggest that senior staff may have been attempting to cover up what happened rather than prevent it from happening in the first place.

As Investigator Karen Baxter writes here, this kind of silence can be a tell-tale sign of a toxic workplace environment. In most workplaces, drone footage and unofficial leaks are not an option for drawing attention to problematic behaviour. It is critical, therefore, to create a culture of openness in which people feel able to raise concerns about those more senior to them.

Whilst the final chapter in the BYOB party saga remains to be written, there are lessons that employers can learn about the need to comply with covid-related rules and guidance, the importance of role-modelling by senior leaders, and creating a culture where concerns can be raised by staff at all levels.