New lockdown regulations affecting hospitality businesses in England - dissected

Premises to face new lockdown from 5 November to 2 December  | Limited off-sales permitted for food and drink from hospitality venues | Alcohol off-sales restricted further than in the first lockdown in the spring/summer

New regulations

The new rules - which come into force Thursday 5 November and last until 2 December when they automatically expire - introduce an amended version of the lockdown in Spring. What was legal before may be illegal now - especially in relation to off sales of alcohol. We have broken down the regulations and have tried to put them in context to give operators examples of what can and cannot be undertaken. We then try to answer some of the questions that have arisen to give real life working examples of how we see the regulations being enforced.

As is the way with these regulations, there may be detail in Guidance that modifies this interpretation. However, given the seriousness of the changes, it is important to try to set out what we understand them to require in advance of them coming into force.

Affected businesses

The new regulations divide businesses into 3 categories:

• Hospitality businesses (part 1)
• Other businesses (part 2)
• Businesses permitted to remain open (part 3)

Part 1: Hospitality businesses (must close with exemptions)

This is a bit of a misnomer as it only includes the following:

• Restaurants (including hotel dining rooms or member’s clubs)
• Cafes (unless exempted as being part of a hospital, care home or other specified exemption)
• Bars (including hotel bars and member’s club bars)
• Social clubs
• Pubs

Part 2: Businesses (must close)

This is a long list, but includes hospitality businesses such as:

• Cinemas
• Theatres
• Nightclubs
• Gambling and gaming ‘bricks and mortar’ businesses
• Concert halls
• Museums
• Sexual entertainment venues
• Outdoor markets (except food markets)
• Indoor ‘recreation and entertainment venues’- which we presume includes bowling alleys, crazy golf, darts etc.

Part 3: Businesses (can remain open)

There is a long list, but it includes:

• Food retailers (including food markets, supermarkets, convenience stores and corner shops)
• Off licences (including shops that sell alcohol and breweries)
• Petrol stations
• Garden centres

Effect of the regulations

In simple terms:

• Businesses in part 1 must close to customers, with exceptions for takeaways. Any part of the business that would otherwise fall into part 3 can open for customers as set out below, but only for those activities.
• Businesses in part 2 must close altogether unless a part of the business would otherwise fall into either part 1 or 3, in which case those parts of the business only can open as set out below.
• Businesses in part 3 can remain open.

Exemptions for part 1 hospitality businesses

Food and drink can only be sold for consumption away from the premises

The regulations are not easy to interpret, but they state:

• Food and drink (but not alcohol) can be sold between 5am and 10pm to customers coming onto the premises to order and collect.
• After 10pm food and drink (but not alcohol) can be sold through delivery, click and collect (although the order must be taken to the customer waiting outside the premises), or drive through where the customer does not leave the car.

Please remember that selling hot food and hot drink after 11pm requires a premises licence for late night refreshment.

Alcohol can be sold at any time subject to permitted hours on your premises licence for drinking off and away from the premises (off sales) as part of:

• An online delivery service to customers
• As part of a pre-ordered takeaway (where the collector does not enter the premises)
• As part of a drive-through where you do not leave the vehicle (note this does not require pre-ordering, unlike the 2 other exemptions above).  

The premises is widely defined here, so you cannot sell alcohol to customers and either provide them with seating outside, or otherwise permit them to use any areas that customers might ordinarily use to drink - such as pavements, seating areas or car parks adjacent to the premises.

Scenarios

Q: I run a restaurant and a customer comes in at 6pm, orders a pizza and a bottle of wine. What can I sell them and how do I do it?

A: You can take the order for the pizza, process it and the customer can wait in the premises for it before taking it away. The bottle of wine would have to be ordered ‘in advance’ and you would have to deliver it to the customer outside the premises. As such, the customer could go outside, phone through an order for the bottle and you could take it to them outside.

Q: I have a hotel. What can I sell to my residents and how would this work?

A: Guests staying at the hotel can order room service, which is specifically exempt, but the bar and restaurant must be closed to residents who, like customers, cannot eat or drink in there. You must comply with the ordinary conditions on your premises licence.

Q: Can I accept take away orders for alcohol alone up until the terminal hour on my licence?

A: So long as the alcohol is pre-ordered as set out above and the customer does not enter the premises, it would appear so. The Business and Planning Act granted off-sales for the majority of on-licensed premises until September 2021 so unless you have had off-sales specifically removed from your licence, you do not even need to have off-sales provision on your premises licence to do this.

Q: I run a 'Pub is the Hub’ grocery shop from my pub. Do the new regulations mean I cannot sell alcohol from the shop for customers coming in for their groceries?

A: No. the regulations only require you to close that part of the business that is restricted. Food retailers are within part 3 (above) and therefore any items sold as part of the shop side of the business, including alcohol, can still be sold.

Q: My bowling alley has a separate café and also a separate bar. Can I open these for off sales?

A: Yes, so long as you only offer off-sales in line with the different rules above in relation to sales of food and drink without alcohol and sales of alcohol.

Q: Do I need to sell food to sell alcohol?

A: No, it would appear that off- sales of alcohol can be made by home delivery or click and collect in line with the times and conditions on your licence. If you can offer a drive through facility, customers do not need to pre-order, so long as they do not leave their car.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.