Scottish hospitality – new omicron rules come into force

Following the emergence of the Omicron variant, the Scottish Government has introduced a new set of regulations and related guidance, which were both published on 16 December 2021 and came into effect at 00.01 on 17 December 2021, giving affected businesses a matter of hours to digest the new rules.

The regulations and guidance are therefore in effect ahead of trading on Friday 17 December. This note provides a summary of our understanding of the regulations and guidance and is very much subject to change given the velocity at which matters are developing.

General

Before we look at the regulations and the two new guidance documents, it is important in our view to understand the status of regulations and guidance and the interplay between the them. Regulations are law and the law must be followed strictly. Breach of the law can lead to sanctions including prosecution and fines. The Regulations themselves, oblige businesses to have regard to the Scottish Government Guidance but the key phrase of “having regard” does not oblige strict adherence, there is an inherent element of discretion for business. In summary, the Guidance must be considered and the appropriateness of the suggested measures for individual business weighed up, with risk assessed decisions being taken having had regard to the specifics of the Guidance. You should note that there are some aspects included within this new guidance which are essentially re-statements of existing legal obligations – which are mandatory, such as adhering to the vaccine passport scheme if applicable, and rules on isolation and mask wearing. For this reason, we will try to provide some greater clarity so businesses can make informed choices.

The new regulations

The latest regulations are The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 5) Regulations 2021 (SSI 2021/475). The link to the full regulations is undernoted.

The Regulations, which are the law and therefore must be followed, do not, as perhaps might have been feared, introduce any new specific restrictions or requirements such as curfews, rules on social distancing, table service, or closure of premises. There is also no specific requirement under these regulations to enforce any maximum “household rule”.

Instead, what these regulations have done is to create a new requirement in law for all affected business to have regard to the guidance (discussed below), and take “such of those measures as are reasonably practicable to minimise the incidence and spread of coronavirus on its premises”. Examples of measures given in the regulations, which link to the more detailed guidance, are as follows:

(i) changing the layout of premises including the location of furniture and workstations,
(ii) controlling the use of entrances, passageways, stairs and lifts,
(iii) controlling the use of shared facilities such as toilets and kitchens,
(iv) otherwise controlling the use of, or access to, any other part of the premises,
(v) installing barriers or screens,
(vi) providing, or requiring the use of, personal protective equipment, and
(vii) providing information to those entering or working at the premises about how to minimise the risk.

There is no new specific legal requirement in these regulations. The regulations require affected businesses to, in essence, do their best and deploy best endeavours to take steps to minimise spread of the virus. This is very much a risk assessment-based approach. Our immediate advice to all clients and the wider trade is to:

re-examine the existing Covid-19 risk assessments that you will already have in place and;
to refresh any related policies;
redouble efforts on how the risks identified can be mitigated;
update those risk assessments and policy documents;
retrain staff based on any changes;
ensure your new documentation is available for inspection.

A link to the HSE toolkit and template on how to complete a Covid-19 risk assessment is at the bottom of this advisory note.

If you have taken such steps based on your own bespoke risk assessment, as it applies to your premises, then you should be compliant with this new set of regulations. The separate, but connected, task is to review the guidance.

The new guidance

There are two new sets of guidance documents to consider. The first is the “Safer Businesses and Workplaces” document; and the second is the linked and updated “Tourism and Hospitality Sector” guidance and FAQs. Links to both of these are below.

The local authority enforcement approach to observation of the guidance is to follow the “Four E’s” approach: “Engage, Explain, Encourage and Enforce”. This is a policy which was adopted by both Police Scotland and the Society of Chief Officers of Environmental Health in Scotland in the earlier stages of the pandemic and has been referred to throughout, including by the First Minister when the regulations imposing vaccine certification were introduced in October 2021. In short, the approach to enforcement of the law, and voluntary compliance with guidance, should go through a “stepped process” of escalation:-

Engage, Explain, Encourage and (as a last resort), Enforce.

This is especially true where complex new guidance has been introduced giving businesses hours to digest it, and put it into effect where reasonably practicable. The Four E’s approach is specifically mentioned in the new guidance.

Guidance: “Safer Businesses and Workplaces”

This set of guidance can be briefly viewed as a call to strengthen compliance with measures which limit the spread of Covid-19 and in particular the Omicron Variant. It is a significant and detailed piece of work. This guidance applies to all businesses and workplaces, including hospitality. At the highest level, this can be seen as a risk assessed approach where the legal obligation is to have regard to the suggested measures and proposals, and to take reasonably practicable steps to minimise transmission. The guidance outlines a number of different measures, many of which are already in place and which businesses are already following which could be implemented.

General guidance for all business

Some of these measures are mandatory i.e. part of the law covered in Regulations:

Rules on face coverings still apply as before
Working from Home should be the “default position”
Self-isolation procedures
Taking reasonably practicable measures to minimise transmission such as:

changing the layout of premises including the location of furniture and workstations;
controlling the use of entrances, passageways, stairs and lifts;
controlling the use of shared facilities such as toilets and kitchens;
installing barriers or screens;
providing or requiring the use of personal protective equipment;
providing information on minimisation of risk to those working in or visiting the workplace
compliance with the vaccine certification or “passport” scheme

Some other measures are “advisory” (i.e. not mandatory):

getting vaccinated
testing before going to work
maximising ventilation
hand and respiratory hygiene

The guidance then goes to note specific measures for various business types including hospitality and retail which will summarise here.

Specific guidance for hospitality

Adherence to local licensing laws (this is mandatory)
Collection of contact details (this is mandatory)
Table service: an important point of clarity is offered here. The guidance says: “strongly encourage the use of table service where possible, alternatively a takeaway service may be provided, though bar service is now permitted in law”
Further reference to compliance with the vaccine passport scheme

Specific guidance for retail

The guidance says: “Retailers should follow and implement the Scottish Government’s regulations and guidance to ensure the safety of customers and staff. Enhanced mitigations should be put in place”. The list provided is:

control the flows of customers entering/exiting and in- store to minimise risk of transmission - wherever possible put in place separate entrance and exits to help control the flow of customers;
promote, provide and maintain hygiene stations and enhanced cleaning measures through out stores;
use tannoy systems, signs, floor markings and queue management systems to help people keep a safe distance from others particularly at potential pinch-points of congregation like tills;
promoting the use of face coverings;
using screens to create a physical barrier between people, for example at till points and self-service checkouts;
maximising fresh air coming into the premises.

There is also a special “checklist” for retail premises, which is available in the links below.

The guidance document goes into much more detail around other measures relating to general steps which might be taken in any workplace, as well as how to support people who are working from home. There is a link to HSE guidance on ventilation measures which could be taken, which we reference below.

Tourism and hospitality Sector: guidance and FAQs

This is the second linked guidance note and it refers back to the Safer Workplaces guidance discussed above and they should be seen as interlinked. Although this element is shorter, it is more targeted in relation to additional advice for hospitality businesses. There is a list of further suggestions which operators might consider as part of a suite of reasonably practicable measures they may adopt. These optional measures are:

Queue management – many premises are already familiar with managing queues, either at doors or within premises. Consider whether current arrangements can be expanded or new arrangements introduced to manage pinch points, such as at bar areas, so that customers have adequate space to queue apart from one another i.e. 1 metre, and crowding does not occur.
Ordering systems – consider whether adaptations to existing ordering systems, such as via apps or at designated queue managed ordering points, can reduce interactions within premises.
One-way systems – consider, where practical, whether introducing, or reintroducing, a one way system will reduce the pressure on pinch points within premises.
Table service – where not already the practice, consider whether reverting to table service is practical. This is an effective way to reduce opportunities for crowding and may also meet with customer preference in the current context of the pandemic.
Use of screens – consider whether the use of screens between tables and or at service points can add to enhanced risk management measures.
Capacity management – linked to queue management, consider whether busy times can be made safer by reassessing how customer flow through the premises is managed i.e. is there merit in ticketing peak festive opening, which may also help with stock management.

The updated FAQs should be reviewed in full, as it confirms a number of helpful matters. We have picked four key points from the FAQs which we believe will be interest to hospitality operators:

A face covering must be worn at all times unless eating, drinking or dancing or being seated at a table. This means that when moving around, queuing at the bar (but not standing drinking at the bar), entering or leaving, going to the toilet etc. a face covering must be worn. This is a legal requirement.
There are certain exemptions from customers wearing face coverings (e.g. medical exemptions) – if a customer claims to be in this group you should accept their explanation.
Legal physical distancing requirements have not been reintroduced but “good practice for queuing and visitor management at pinch points (e.g. where drinks are served, buffets, entrances and exits) is strongly encouraged”.
Customers are legally allowed to drink at the bar, although drinking at the bar or in areas which are likely to create pinch points is “discouraged”

Next steps

No sooner had the new regulations and guidance been published, a mere number of hours ahead of them having effect, it was also reported that the First Minister has written to the Prime Minister and the Treasury requesting the reintroduction of economic support and a potential furlough scheme, sparking rumours of closure or similar restrictions., At the same the First Minister highlighted that yet further restrictions on “high-risk settings” may be “unavoidable”. Although there is no further clarification on any of that at the time we published this note, previous language used by the Government suggests that they view nightclubs and late-night venues as “higher risk settings”. We will endeavour to update as and when we can.

We remain here to provide constant support and advice to our clients during these further difficult times. If you have questions or concerns please contact a member of the Licensing Team.