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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.
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 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:
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.
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.
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.
Some of these measures are mandatory i.e. part of the law covered in Regulations:
Some other measures are “advisory” (i.e. not mandatory):
The guidance then goes to note specific measures for various business types including hospitality and retail which will summarise here.
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:
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.
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:
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:
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.
The Regulations: https://www.legislation.gov.uk/ssi/2021/475/made
Safer Businesses and Workplace guidance: https://www.gov.scot/publications/coronavirus-covid-19-general-guidance-for-safer-workplaces/pages/overview/
Tourism and Hospitality Sector guidance and FAQs: Coronavirus (COVID-19): tourism and hospitality sector - gov.scot (www.gov.scot)
Checklist for Retail premises: Coronavirus (COVID-19): safer businesses and workplaces - gov.scot (www.gov.scot)
HSE Guidance on Ventilation and Covid-19: Assessment of fresh air (ventilation) in the workplace (hse.gov.uk)
HSE Risk Assessment toolkit and template: Risk assessment - Working safely during the pandemic (hse.gov.uk)
17 December 2021
Partner, Head of Licensing Scotland Glasgow
Legal director Glasgow