When pubs reopen how will enforcement work?

As pubs and restaurants open this weekend we consider how regulatory enforcement for complying with Covid-19 social distancing might work.

Apart from in Leicester (and any other area where local lockdown measures may be re-instated) pubs, restaurants and cafes are due to open this weekend in England with many anticipating a bumper period of initial trade as we make the most of the return to some sense of normality.

The government guidance on measures to introduce in pubs, restaurants and cafes was amended last week to incorporate the 1m + alteration so eagerly awaited. It sets out a helpful practical summary of what businesses need to consider prior to re-opening and how to minimise the risks of transmission of the virus.  There are however some questions around how enforcement of this guidance might look for those in the trade and what landlords and pub companies can do to minimise the risks.

In order to look at how enforcement might work it is first necessary to consider the legal classification of the guidance released by the government and the regulatory regime in a pre-Covid world (which feels light years ago).  This is important as for the most part the arrangements for social distancing requirements in the leisure sector are underpinned by current health and safety law and employment law for those working both front and back of house.  The guidance itself confirms that it does not supersede any legal obligations relating to health and safety, entertainment licensing and other relevant regulations.

The legal framework for health and safety and public safety has not changed since Covid-19 with operators under a duty to ensure so far as reasonably practicable the health and safety of their staff and guests.  What has clearly changed is the focus on the risks presented by Covid-19 which will require for all organisations a Covid-19 risk assessment.  This document should be in writing and published on the website (for those employers with more than 50 workers) and communicated clearly to employees and those implementing the protective measures identified in the risk assessment.  All quite straightforward in the cold light of day but what about towards the end of the night after a release from lockdown. 

This is where the question of enforcement will be relevant, particularly in the first few days and weeks of opening.  We would expect that the relevant local authority takes the lead on checking compliance with Covid-19 public health requirements where issues arise, however, other agencies may also become involved depending upon the circumstances.  We have seen that essential retailers who have been open throughout the pandemic have been on the receiving end of police visits after complaints about not meeting social distancing requirements and also as a result of threatening and abusive behaviour towards their staff.  The Health and Safety Executive (HSE) may also become involved.  For those in the leisure sector a similar approach is anticipated.

Here is some practical advice for operators to respond to customer queries or indeed questions from the relevant local authority, HSE or the police:

• Make sure all relevant staff members know where the Covid-19 risk assessment is, and are referring to the correct version of the document;
• Keep evidence of staff training records on the risk assessment to hand also;
• If you can point to any external assessment and advice from health and safety consultants or reliance on the government or HSE guidance then this is likely to assist;
• If you are served with a formal notice, for example an improvement notice or a prohibition notice closing the premises, seek legal advice as soon as possible as the notices are subject to strict appeal timescales.

One last point which will be key to all of this will be communication.  Make sure your staff know and understand the new procedures and processes informed by the Covid-19 risk assessment and are able to help customers with any concerns or issues with the use of appropriate signage to reinforce the message.

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