A Winter's Tale: Trading through a Covid winter in England & Wales

The winter months will bring unique complications for leisure, food and drink companies trying to comply with the Covid-19 regulations in England & Wales. 

Chief amongst these is the use of outdoor space. It has become a lifeline during 2020, but with its use comes several new risks and considerations as the weather turns. Add to that the difficulty of dealing with difficult customers and rising tensions from people facing Covid-restricted Christmas celebrations and Covid ‘fatigue’ and there is a real potential risk of breach and/or enforcement action.

Outdoor space 

It is likely that operators trading throughout winter will need to rely more heavily on external space than they have done previously. Retrofitting external spaces to make them comfortable for customers in the winter is challenging and often depends on the size of the space and whether it falls on the company’s own land or council owned land, such as the highway.

Many local authorities have been open-minded about the use of their land to help operators make up for lost space inside. The recent extension of the Business and Planning Act, which granted off sales permissions to on-licensed premises who otherwise did not have them and introduced a low-cost pavement licence procedure, has been extended to March 2022. This will allow for those premises using the space to continue to do so throughout next year.

However, additional street furniture such as umbrellas, heaters or awnings may require changes to the permissions sought over the summer. Some authorities also have strict rules on the use of space heaters – some banning them entirely – so before spending money on such items, operators should check that they are permissible and will fit into the space they have licensed. 

Where marquees have been put up in gardens or on private land, consideration will need to be given to whether there are planning issues relating to the length of time the structure is to be in place, or whether the structure itself is strong enough to survive a winter.

Also, as tempting as it is to simply move all entertainment outside to try to offer some festive and New Year cheer, consideration needs to be given to neighbours who may have been more forgiving in the summer. Open and honest dialogue with residents about what the business is anticipating doing and what measures they are taking to mitigate disturbance are often game changing, and can avoid complaints leading to council officers trying to shut down events or ban music entirely. 

Smoking areas

If operators are using external space that is licensed from the council under the temporary pavement licence scheme, they will need to ensure that there are designated non-smoking sections that are easily identifiable for customers. 

Likewise, if marquees are substantially enclosed i.e. over 50% of the sides are enclosed, customers cannot smoke within them. Businesses might want to designate a smoking area away from dining tables for example, but remember that conditions on the premises licence may restrict where these can be or the number of smokers permitted, especially later at night. 

Temporary Event Notices (TENs)

TENs are often used at this time of year for extensions to hours or activities to accommodate parties. It is worth noting that: 

• TENs can be used to licence gardens, for instance, to take into account activities that might otherwise not be permitted and therefore make the most of the area. By applying for TENs for the outside only, businesses will preserve the right to use TENs inside. 
• TENs cannot override any Covid-19 regulations on closure times or restrictions on activities. 
• Applications should be made as early as possible to iron out any concerns. Both the police and environmental protection teams can object, so liaising with them in advance to confirm that they are happy with any proposed activity can prevent issues further down the line.  

Difficult customers

We are often asked: how far do premises have to go to ensure that their customers are complying with the rules? As the mulled wine flows, and at a time when people naturally want to gather together, this could become an even bigger issue for operators. 

Businesses are talking of customer backlash at being asked to wear masks or sign in for track and trace – in some circumstances staff becoming concerned for their safety and wellbeing. This needs to be taken seriously and should really be addressed as part of a proper Covid risk assessment. 

Staff need to feel that there is a process in place and management support for the decisions they are making on letting customers into premises, reminding them of their responsibilities and, where needed, taking action where customers are clearly breaching the rules. 

Some councils and a number of the industry associations have also developed handy guides and advice to help ensure that as far as possible all parties know what is expected and that staff feel supported. Conflict management training, for instance, may sound like overkill, but where there is tension between staff and customers it can go a long way to preventing problems from escalating. 

Time to prepare

Given the short turnaround time between the proposed end of the English lockdown and Christmas, and the fact that the rules in Wales may still change, it is likely that proper Christmas planning and booking is going to happen very late in the day.

However, there are some factors that can be dealt with in advance: 

• Consider how you will communicate with staff and customers about how you will be operating. 
• Be sensible about whether a relaxation of the regulations changes anything for you. If limiting groups to single households works best for you, then it might cost more in the long run to plan for anything more than that. 
• Split your risk assessment into contentious and non-contentious areas. Hand sanitisation, one-way systems, face coverings and track and trace are all here to stay. Opening hours, group sizes, pre-booking, table service-only, different rules for inside and outside and provision of entertainment etc. are more likely to change with time and under a tiered system. By separating the two, you can more easily adapt and communicate with staff and customers.  

Preparing in advance will help to avoid what has become an increasingly draconian stance from the government when it comes to enforcement of the regulations. The initial mantra of enforcement as a last resort has slowly drifted into using enforcement to clamp down on premises breaching the regulations. This is translating into more fixed penalty notices and, unfortunately, enforcement action, including directions for closure and in some cases reviews and summary reviews of premises licences. 

It seems inevitable that there will be changes to the rules and regulations as the rate of infection fluctuates across the UK in the coming months. What we do have is the experiences of the different lockdown formulas to fall back on as guides to what the future may hold. This should at least allow businesses to look at how they can adapt when necessary for an uncertain winter ahead.

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.