Latest Scottish hospitality omicron restrictions announced

Further “Omicron” measures have been introduced via regulations and guidance, restricting the operation of “events” from 26 December 2021 and wider hospitality premises as of 27 December 2021.

The background to these restrictions is concern intimated by the Scottish Government around the spread of the Omicron variant. The First Minister announced to Parliament last week that it would be necessary to implement additional measures so “…to further slow the spread of the virus so that we can protect health, the National Health Service, and the economy as we work to complete booster vaccinations.”

These measures limit the size and operation of live public events and the operation of hospitality premises. The new rules will be in place for a minimum period of three weeks, which means they would end at the earliest on 16 January 2021, although, as with many other restrictions adopted throughout the pandemic, they could last much longer.

The regulations and guidance that set out these restrictions were only published today leaving businesses very limited time to prepare and digest the new rules. Therefore, our comments – as set out below – are based on an initial review of two sets of regulations and two sets of guidance which are interlinked and is our best effort to issue an advisory note as early as possible. It is, therefore, vital that should you have any specific queries, that you contact one of the Licensing Team.

Restrictions on hospitality business

The following is a note of the key new restrictions.

The “Table Service” rule

The new regulations introduce a requirement for “seated food and drink consumption” which is sometimes referred to as the table service rule. Firstly, it is important to note that this requirement does not apply to unlicensed premises meaning it would not apply to unlicensed cafes, coffee shops or fast food restaurants.

The regulations do set out that, for “relevant leisure premises” (see the full list below), food and drink (including but not limited to alcohol) can only be sold for consumption on the premises if “where reasonably practicable”, the food and drink is ordered by and served to a person who is seated on the premises AND the customer remains seated whilst consuming the food and drink on the premises.

This means that a business – having reviewed its operation carefully – could deem it not reasonably practicable to take orders and deliver food and drink to seated customers, and may take orders and serve customers from a bar counter or similar instead. It is, however, important to note that the requirement for food and drink to be consumed while seated is absolute. In other words, customers can order at the bar, but they may not drink or eat at the bar. They must return to their table and sit down to eat or drink.

Guidance issued by the Scottish Government clarifies some useful additional following points about the table service rule:

Buffet service may be offered provided there is appropriate physically distanced queuing.
Games and gaming machines may still be played and used provided that appropriate distancing, face coverings, and hygiene controls are in place. It is important to note that food and drink must only be consumed when seated.

It is also important to remember that pre-existing rules such as face-mask requirements, and additional requirements in relation to risk assessments remain in place. We examined these in our last advisory note on 17 December 2021 which is noted at the end.

The Physical Distancing Rule

The new regulations published today see the reintroduction of a “one metre” rule. The requirement for one metre physical distancing applies to a wide range of businesses, including all on-licensed premises. These businesses must take measures, so far as reasonably practicable, to maintain a distance of one metre between any persons on the premises, including patrons waiting to enter the premises – but there are some important exceptions to this such as the household rule noted below. The capacity of the premises must, as a matter of risk assessment, be controlled to make sure that such social distancing is possible.

Importantly, the requirement to one metre apart does not apply to members of the same household, nor does it apply to a wider group of households that come to the premises together in a group.

The last piece of this particular puzzle is that there is a limit proposed in guidance as to the number of households who may gather in a group, which is three. This is a matter for the public to observe, not for businesses, and is guidance, meaning this is directory, not mandatory. Importantly, there is no limit on the maximum size of a household. The key obligation for businesses is making sure that there is one metre physical distancing between households or groups of households.

Nightclubs are not permitted to operate as nightclubs

Separate regulations (undernoted) require that nightclubs close as of 5am on 27 December 2021. However, the Scottish Government is giving nightclubs a choice, as it is clearly set out in the accompanying guidance, that nightclubs may repurpose or reinvent themselves, i.e. as bars. The guidance says: “Nightclubs must close from 27 December. They have the option of adapting their business model and staying open without dancing – but table/at seat service and 1 metre physical distancing between groups would need to be in place. We are engaging with the sector to discuss a package of support.”

The requirements around social distancing and consumption of food and drink while seated will apply and no dancing is permitted – but there is no prohibition on recorded or live music or DJs etc, and no curfew or terminal hour is imposed.

The guidance refers to additional financial support for clubs who close. Our understanding is therefore that nightclubs can either (a) close, and apply for additional grant support, or (b) remain open but as a bar whilst observing the above rules - but in so doing you may become ineligible for any grant that is payable to premises who decide to close. Levels of financial support are unknown at time of writing.

If considering to adapt the nightclub’s business model so to comply with the regulations and remain open, it is important to have regard to the terms and conditions of your premises licence. There may be conditions that may prevent the adaption of the premises. You should seek specialist legal advice where there is any doubt.

There appears to be – intentional or otherwise – a pitfall in the interface between the aforementioned regulations. The regulations imposing limits on event sizes comes into force on 26 December while the regulations closing nightclubs come into force on 27 December. Operators are clearly planning business as usual until 05.00 on 27 December but if you are having an "event" you should seek specialist legal advice.

Special restrictions for “events”

The first question to ask is, of course, what is an event? The Regulations define a live event as:

““live event” means an event or activity which brings individuals together for the purpose of community, culture, sport, recreation, entertainment, art or business but does not include—

(a) an event or activity which is or relates to a funeral, marriage ceremony or civil partnership registration,

(b) a mass participation event such as a marathon or triathlon,

(d) a showing in a cinema,

(e) a drive-in event,

(f) an organised picket,

(g) a public or street market, or

(h) an illuminated trail,”.

The regulations impose a number of bespoke restrictions on “events” including limits on the size and operation of live public events which come into force from 5am on 26 December:

Indoor standing events – 100 persons
Indoor seating events – 200 persons
Outdoor events (seated or standing) – 500 persons

It is important to note that the capacities are the maximum capacities and apply irrespective of what capacity can be accommodated socially distanced.

The following persons do not count towards the capacity:

Persons working or providing voluntary or charitable services; and
Children under five years of age.

Issues around “dancing”

The guidance says the following: “with the exception of wedding receptions, dancing will not be possible due to the likelihood of households mixing in large numbers”. There is no further discussion about whether there is any separate rule about where dancing may take place. For example, the guidance does not differentiate between dancefloors or dancing at tables, and it is clear from the above comments about nightclubs trading as bars that they can only do on the basis there is no dancing. The Government position is therefore that dancing should not happen at all, in order to ensure there is no breach of the physical distancing regulations – with the exception that dancing is permitted at weddings.

Private life events

The above noted limits on event capacities do not apply to private life events such as weddings, civil partnerships, receptions for weddings or civil partnerships, funerals and funeral wakes. Neither physical distancing nor seat service requirements apply to life events.