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Scottish hospitality premises were, after some considerable time, able to reopen on a restricted basis as we entered Level 3 on 26 April 2021. The nation saw some of our pubs, bars and other hospitality venues come back to life and inject some much-needed vibrancy into daily life.
But many premises are still unable to trade due to lack of outdoor space, or where it is simply not commercially viable, whilst other businesses such as nightclubs and some leisure facilities are unable to open without even a date being on the horizon, so this remains a very troubling and delicate period.
Reopening at least part of the hospitality industry has brought with it real confusion over what the new regulations and guidance mean, particularly over issues such as physical distancing. This advisory note aims to offer some overall clarity to the key themes and challenges which have arisen since 26 April 2021.
The following is a quick overview of the basic rules under the new Levels regulations. It should be noted that physical distancing and enhanced hygiene measures (sanitation, masks when moving about etc) are expected at all levels.
The revised principal guidance, as of 26 April 2021, confirms that the “1 metre” rule for hospitality premises remains in effect, as it was last year, stating:
"Everyone visiting a hospitality setting must remain at least 1 metre apart from the next person, unless from the same household or a carer. On playing areas in bingo halls and casinos 2 metres must be observed. Businesses must review layouts and take all reasonable measures to ensure requisite spacing, including back to back and or side to side arrangements between seated groups, using physical separators/screens where necessary and or one way systems.”
In order to “activate” the allowed 1m rule, premises should have conducted a risk assessment and have in place signage highlighting that customers are now entering a “1m zone”. Broadly speaking, the principle guidance suggests the following examples of matters which might be covered in a risk assessment:
This is not designed to be an exhaustive or mandatory list of steps - it is for individual businesses to satisfy themselves as to the exact details of these or any other steps which are appropriate for their own premises. These examples are, however, now fortified by the new physical distancing guidance on calculating capacities, which also took effect from 26 April 2021. This new guidance outlines four key tasks that the Government expect operators to follow, which are:
For the avoidance of doubt, the guidance makes clear that any additional steps should be in place by 17 May 2021 so there is a sensible and proportionate period of adjustment to allow premises to consider matters and allow any new steps to “bed in”.
We would anticipate that local officers would work constructively with businesses to help support them through this period, just as we would expect businesses to deal with officers respectfully, listen to their advice, and aim to reach an agreed position.
This brings us to the key issue of how to calculate the PDBC. The calculation of the PDBC depends on the type of premises, but for the purposes of this note we are focusing on hospitality premises, i.e. bars, restaurants and so on. A key sentence in the guidance as to the methodology to be used is as follows:
"There are no prescribed methodologies for calculating the PDBC. Premises can use any appropriate calculation provided that they can demonstrate that they have fully considered the physical distancing requirements to reduce the risk of transmission.”
What this means is that it is a matter for the individual business themselves to identify and use a calculation that they deem to be appropriate to reduce that risk. Notwithstanding this, we are aware of some local enforcement officers instructing businesses to follow a model they propose; as opposed to an advisory approach where any alternative model a business chooses to follow is considered. For example we have heard some officers are insisting that an occupancy capacity style calculation based on a certain load factor should be used. This approach is one possible way to calculate the PDBC.
This approach is based on the Government putting forward a suggested methodology of relying on fire safety capacity calculations within the Non-domestic technical standards handbook, which is the “rulebook” for the application of building standards legislation, and on the techniques used in sports grounds.
The document the Government points to essentially proposes two ways to reach the PDBC:
Putting forward a workable, easy to understand alternative to these proposals is no mean feat. Any suggested methodology cannot be seen as strict legal advice but this advisory note should be seen as our best effort to indicate what we feel is reasonable to seek to apply, having reviewed the documentation.
At its most basic, following this calculation of the PDBC is about dividing the floor space by the “load factor” which relates to the space each individual would need. Outwith the prism of coronavirus, the typical load factor for a pub which had 100m2 space would be 0.5 - meaning a “licensed capacity” of 200, by way of example.
In following this method, our broad suggestion is therefore as follows:
Using our example of a pub with a “clear” floor space of 100m2, the normal licensed capacity is likely to be 200. Applying the less restrictive PDBC load factor of 1.0, your temporary physical distancing capacity (100 divided by 1) drops to 100. Applying the more restrictive PDBC load factor of 1.5/1.6 your physical distancing capacity (100 divided by 1.5; or by 1.6) drops to 62 to 66 persons depending on exact layout. There can be no hard and fast rule on this, it is very much influenced by the individual layout of premises on a case-by-case basis; as well of course of the practical reality of agreeing or not with the methodology you choose to put forward in consultation by local officers.
Some other points to note about physical distancing and moving around premises:
As of 26 April 2021 it is now a mandatory requirement to collect the details of every customer and not just a “lead” person for the party/booking. The purpose of this to assist the Trace and Protect contact tracing service. The Scottish Government has developed an app to assist with this called “Check-in Scotland” details of which can be found here: How to use the Check In Scotland QR code - Mygov.
Businesses must remember that the collection and storage of customer’s data brings with it obligations in relation to data protection such as in relation to storage and disposal of the data, and they will most likely require to be registered with the Information Commissioner’s Office. More details on this aspect are provided in the Scottish Government guidance.
The Scottish Government Guidance on customers refusing to provide details is that service should be refused/withdrawn.
Any business who needs legal advice on these points can contact the TLT licensing team and we will introduce you to one of our data protection specialists.
All customers and staff should wear masks when moving around. Customers do not require to wear a mask when seated at their table to eat or drink. In bingo halls and casinos, masks are required to be worn by customers whilst sitting to participate in a game, but may remove the mask when eating or drinking. There are exemptions to the requirement to wear a mask for medical or related reasons. Specific guidance on face coverings, including details on exemptions, can be found on www.gov.scot.
In the run up to the 26 April 2021 a number of documents including draft guidance issued by the Scottish Government appeared to suggest that background music was not allowed either in or outside premises. This is not correct. The previous ban on background music was reversed, following the work of an advisory group. The technical work of that group allowed Government to amend the guidance so as to allow background music, so long as a risk assessment was followed and implemented, before “switching on”. The principle guidance confirms this remains the case and the risk assessment steps remain part of that guidance. This can be found in the Coronavirus (COVID-19): tourism and hospitality sector guidance - gov.scot.
In specific relation to outdoor areas, the guidance says:
“This guidance does not prevent the use of low level background music in outdoor spaces but you may be prohibited from allowing this under the conditions of your premises or occasional licence. Many licensing boards will attach a condition which prevents music from being played in outdoor areas. If your licence does not have such a condition, then you could have low level background music for ambience in your outdoor area, but in doing so you must be mindful of other considerations such as amenity or impact this might have on local residents. If in doubt consult your local environmental health teams.”
A final point on background music is that the Scottish Government has confirmed that “live” background music (eg an acoustic guitarist in a bar) should not be offered until 17 May 2021.
Under the previous iteration of the Levels Regulations, a much-maligned rule was created in relation to what the industry refers to as wet-led pubs, i.e. “drinks-only” pubs. The rule prevented wet-led pubs from trading in a Level 2 area. This in turn created a scenario where outdoor areas could be used for alcohol sales, but only where the pub had a kitchen, even though no food was required in the outdoor area. This was criticised as an absurdity by many, who will pleased to see that the rule has been repealed.
Under the new Levels Regulations (see Reg 6(4)), which take effect from 26 April 2021, there is no requirement for a kitchen or food to be served in relation to wet-led pubs. This means in Level 3 beer gardens can open for alcohol and in Level 2 (likely to be 17 May) indoor areas can reopen for alcohol service.
Many will be aware of the general rule that alcohol can be provided at weddings and funerals, and such “life events” can be catered up to 50 persons. These events can be catered for on hospitality premises such as bars and restaurants (assuming they have the facilities) as well as traditional wedding venues like hotels and so on. There is a specific element of the principal guidance which relates to what rules exist for weddings and funerals and this can be found in Coronavirus (COVID-19): tourism and hospitality sector guidance - gov.scot.
In addition to much of the underlying guidance that applies to all hospitality premises, there are some special provisions worth noting in summary here:
The terminal hour is 10pm under Level 3, moving to 10.30pm in Level 2, 11pm in Level 1, and normal licensing hours apply in Level 0.
References to a rule surrounding a two-hour dwell time have attracted a number of views from the trade and other commentators. The idea of having a pre-booked two-hour slot for customers is not a legal requirement under the regulations but sits within the guidance. The two-hour time slot should only considered for indoor bookings (i.e. it is not suggested as necessary for outdoor spaces).The relevant FAQ states:
“For drink only services customers should be advised at time of booking/checking-in of the expected dwell time and systems should be in place to ensure customer awareness and cooperation with the measure.”
The two-hour rule is not a strict legal requirement although we understand that, for operational reasons, many licensees are following this. If an operator chooses not to follow this part of the guidance they must consider what other measures they should have in place to minimise transmission risk. It is prudent for businesses to document their steps very clearly in a risk assessment, and note the mitigating measures you have implemented as an alternative.
Any outdoor space where alcohol is being served will of course require to be licensed, whether by way of an occasional licence or being part of a premises licence. Licensing boards are doing their best to process applications for occasional licence for outdoor spaces although some, (that we are aware of) have also indicated that they will expect such areas to be subject to a major variation application to make it a permanent part of the licence. Many operators, in seeking to use outdoor spaces, will be investing in structures to try to shield customers from the traditional Scottish weather.
There are a number of factors to be considered in relation to structures of this nature. It is worth noting that the Chief Planner has written to all local councils to say that enforcement of the absence of proper planning permission should not be undertaken at this time. This is specifically to allow outdoor hospitality to be provided during this difficult period, to try to help the trade recover. A copy of that letter, which was most recently affirmed on 22 March 2021, is here: https://www.gov.scot/publications/chief-planner-letter-stakeholder-update---march-2021/. This is in addition to the typical 28-day exemption.
Further, the Minister for Local Government, Housing and Planning, Kevin Stewart MSP, also wrote to all local councils on 4 March 2021 to continue the “special approach” to the erection of temporary structures by the hospitality sector for the purposes of outdoor hospitality. The purpose of this is to relax the application/enforcement of building control permissions to seek to support businesses. This letter can be viewed here: https://www.gov.scot/publications/coronavirus-covid-19-special-measures-to-enable-the-erection-of-temporary-buildings-by-the-hospitality-sector---letter-from-planning-minister/.
In relation to what constitutes an outdoor space, the principal guidance confirms (in the FAQ section) that the “50% rule” still holds, alongside a separate requirement to have such structures at least 1.5m away from other buildings/walls to allow for ventilation. To be “outdoors”, the area cannot be substantially enclosed, following the equivalent law for smoking shelters.
Notwithstanding the general prohibition on alcohol consumption inside hospitality premises, a hotel premises may still offer alcohol by way of room service without restriction on time.
A hotel resident may therefore order a meal and drinks for consumption in their room, at any time (subject of course to the hoteliers discretion), and of course may consume their own food or alcohol in their own room.
This does not extend, in our reading of the principle guidance, to allow “collection points” or other dispensary alternatives. Hotel residents can have a meal indoors between 6am and 10pm (without alcohol) and are of course subject to general hospitality rules outdoors.
The amending regulations, which bring into effect the “new” levels rules, is the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 21) Regulations 2021 (SSI 2021/193).
View these latest amending regulations.
These amend the previous principle regulations, ie the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 (SSI 2020/344), which have themselves been amended on several occasions.
View the principle regulations
The Scottish Government tourism and hospitality guidance (the “principal guidance”) was last updated as of 26 April 2021.
View the Coronavirus (COVID-19): tourism and hospitality sector guidance
The Scottish Government issued specific guidance on physical distancing on 26 April 2021.
View the Scottish Government's guidance on physical distancing
Partner, Head of Licensing Scotland Glasgow
Legal director Glasgow
29 April 2021