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Wed 12th May 2021 - Legal Briefing

Approaching freedom by Michelle Hazelwood

On 17 May, hospitality can finally open its doors and welcome the British public with a pint, whether the sun is shining or snow is falling. We look forward to this exciting milestone and feel a sense of pride in being able to welcome guests indoors once again. Despite this, it is clear there have been some unfortunate dips since the outdoor reopening, the change of the weather being a key factor. After good trade during a pleasant end of April, much of the country experienced an unusually wet start to May and this meant few of us were willing to bear the downpours for a meal or drink. We saw some venues decide to pack up early and cancel reservations during these wet days, leading to an additional cut in revenue. Ironically, shopping centres thrived throughout this time and encountered strong trade at bank holiday weekend, highlighting the disproportionality of the decision from the High Court regarding the Judicial Review put forward by Sacha Lord. We are sure, for many operators, these sales were not “academic”. The ruling was a disappointing outcome for the industry.

This means the next step for hospitality, although not brought forward, is creeping up on us quickly. Soon, customers will be able to return inside in groups of up to six or of two households, but additionally, outdoor gatherings will allow up to 30 people. Hospitality remains under the classification of a restricted business so food and drink must be ordered and served to a customer who is seated on the premises, no matter if indoors or out. Staff will still have to take all reasonable steps to ensure the individual remains at their table throughout their time there except for during toilet trips. Masks, NHS-check-ins, and one-metre distancing will still be in place. Nightclubs continue to remain closed but have the opportunity to reopen if they “cease to provide overt music and dancing” and operate as a sit-down venue. Furthermore, local authorities have been told to avoid issuing licences for events that could lead to larger gatherings forming and they should provide advice to businesses on how to manage these kinds of scenarios. 

Against all this new-found freedom, venues must still operate in a covid-secure way. This leads to the question televising football games within venues, especially regarding the delayed Euros. We have had police and enforcement officers in the initial opening period stating there could be no broadcast of football in hospitality establishments at all. Many pubs and sports bars take in a large amount of their revenue from these events making them vital to the survival of these businesses after the pandemic. Venues must consider the ways fans could continue to watch games at their local in a covid-secure way. After all, the government has already begun piloting in-person spectator football games with some level of social distancing and masks, albeit going from photos in the press, sometimes not over all their noses.

The much-anticipated European Championship and Champion League final should provide the public with a major boost of morale and also the opportunity for venues to generate some much-needed income. The latest evidence suggests people are desperate to return to the pub for events like this after such a draining year, and so it is expected they will come in droves. Part of the difficulty will be managing the expectations of customers, some, of course, will want their experience to be just as it was for the World Cup in 2018, whereas others will desire more space and security with the pandemic lingering in the back of their minds. Quickly adapting the customer’s experience to fit the roadmap will be even harder because the Euros straddle two different guidance steps. The initial heats take place under step three and the knockouts fall under step four after 21 June when all restrictions are supposedly lifted. 

Stage three requirements will apply during the initial group stages, so operators will need to establish whether groups of six or over are from two or the same household when being seated indoors. The guidance also states operators should “prevent shouting, singing and dancing in the venue by making sure music and broadcasts are played at a low volume”. It is evident people will not be able to hear the commentary in such an environment. Do you turn on the subtitles and just have the visual element? It makes you question whether customers will even attend during matches if this is the decided approach or just stay at home. Not to mention, how exactly do you manage fans’ loud displays of euphoria or despair?

Operators with lots of outdoor space and beer gardens may have more options available because many fans can meet and view the game outside. It allows for larger groups to celebrate together but leads on to the considerations of how exactly you segregate areas when there could be up to 30 people attending as a group – but also as few as two. The guidance states these groups must be kept apart with spaced-out tables and that you should consider using barriers between parties. Under the rules, these customers are still required to be seated before 21 June but there is actually no need for a table. Would it be acceptable for customers to be sat on the floor? 

These are all questions that are on the horizon but, looking further ahead, we are led to wonder what the unrestricted position on 21 June will entail. This will partially depend on the results of the series of unsocially distanced pilot events such as the recent maskless 6,000-person club night at Circus in Liverpool. The government hopes to remove all legal limits on social contact but there have been whispers about the likely need for some levels of protection and caution to remain in society. Chief scientific adviser Sir Patrick Vallance said: “It’s more likely to be that we wear masks in certain places, we continue with hand washing and make sure we are sensible about the way in which we interact with people in indoor environments.” Hospitality will, on past experience, have more requirements to contend with even when the roadmap ends but I have no doubt the industry will adapt and prevail in each step just as we have seen it do before. 
Michelle Hazelwood is a partner at John Gaunt & Partners
John Gaunt & Partners is a Propel BeatTheVirus campaign member

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