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Morning Briefing for pub, restaurant and food wervice operators

Wed 14th Jul 2021 - Legal Briefing

The tightrope to freedom by Michelle Hazlewood

Hospitality operators throughout England have recently heaved a massive sigh of relief after the prime minister announced “Freedom Day” would take place on 19 July. This is despite the data showing a stern increase in cases, but hospitalisations and deaths remaining low. There will be a sudden end to all the restrictions that hospitality has traded under for so many months and the craving for a level playing field with other parts of the economy (particularly retail) will finally be satisfied. 

Of course, we are all excited to welcome this momentous day but when reflecting on the circumstances, a few points have come to mind. First of all, the term “freedom” is something of a misnomer because hospitality has never been allowed to trade in an unencumbered way due to how the industry is legally regulated. In addition, 19 July won’t mean things quickly return to “the good old days”. The landscape of hospitality has adapted so much over the past 18 months and it is likely the pandemic will have left its mark on the way the industry is run. We may have lost all of the requirements from public health, but duties of care continue to exist, concerning the health and safety of staff, customers, licensing regulators and regulatory requirements. It makes you wonder what the new expectations on safety will be like and whether businesses will be compelled or feel the need to take action to stop the transmission of the virus to staff and customers. I have heard some operators say they are planning to continue for a time with their current approaches such as table service even after 19 July because they feel their staff members and customers would be more comfortable within their venue.

Other managers are currently harnessing the benefits of team training in anticipation of the full reopening. This will include the usual terms of how to efficiently operate the business model but also to ensure a continued high level of hygiene and reading of a customer’s preferences. One particularly interesting discussion is in relation to “personal space” and if the pandemic has adjusted people’s perceptions of what that exactly is. In the past, depending on the nature of the venue, the availability of breathing space was an unwritten code the customers and staff had a complete subconscious understanding of. This could range from being in a restaurant where there may be yards between individuals to a busy nightclub where you may be lucky to have inches. May these new post-pandemic standards have an impact upon customers’ behaviour and reduce or generate conflict within these venues? Late-night operators should consider whether the first few weeks could be turbulent as the public become accustomed to these “new” more vibrant environments. Confidence within the staff team is, therefore, paramount because they will have to deal with the implications of all the legislation and the expectation of the “new normal” from customers. Recently, prime minister Boris Johnson raised a further layer of checks stating: “As a matter of social responsibility, we’re urging nightclubs and other venues with large crowds to make use of the NHS covid pass as a means of entry.” This could mean customers would require proof of a double vaccination or a negative test within 48 hours. SIA door teams can be effective at undertaking such steps in big venues at the same time as checking ID, but what of the small venues? What would be the impact on queues and local interpretation when this “urged” process becomes mandatory?

Although we all relish the removal of masks and screens, there is an argument for phasing out the restrictions so individuals do not feel exposed and vulnerable. There is a concern that once this significant raft of legislation disappears overnight, more wary customers may be put off returning to hospitality venues. 

Of course, other legislation is still firmly in place, particularly in the arenas of employment law and common law by the tort of negligence as well as the duties arising under the Health & Safety at Work Act. A risk assessment written two years ago for the then normal operation should be reviewed before 19 July to try to accommodate the drastic changes to the industry and public life in general. This is not to mention that venues should still be obeying the four licensing objectives: the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm.

On the other hand, there are also so many positive advancements to come from the pandemic and hospitality’s resilience that the industry is making leaps and bounds with new approaches. Customer satisfaction levels have increased and average spends have been enhanced. So many operators have developed apps to facilitate ordering, which, in turn, has relieved pressure on the bar and can expedite the service. This may be one of the things that are here to stay after restrictions are eased. Unfortunately, if the alcohol is picked and added to the order outside of the licensed space, it will be deemed an unlawful transaction. I believe that time should now be spent reviewing the activities permitted under the licence and thinking about how we can continue to develop and build on the progress that has been made.

Although distance will not be mandatorily prescribed anymore, many will still feel the need for space, particularly those who have experienced a new sense of vulnerability during the past 15 months. We have learnt so much about the social dynamics of the country and developed awareness of the plight of others during this time. It is something to be carried forward into the future and, in doing so, would be an asset for hospitality. Whether it is through shielding or just a requirement to isolate as a country, we now have a collective understanding of what it means to be truly lonely.

The communion of a public house, restaurant and festival is what has been craved and valued by our nation. These little temples of happiness can be refuges for those who often feel isolated and they are a great representation of community. Recently, at a premises I visited, I saw a chair – labelled the chatty chair – which was an open invitation to anyone who would wish to have a conversation. I think this is an excellent place to end this piece because we all feel excited to welcome back friendships with newcomers, celebrations of union and relive, again, a piece of what makes the United Kingdom so special.
Michelle Hazelwood is a partner at John Gaunt & Partners
John Gaunt & Partners is a Propel BeatTheVirus campaign member

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