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DCMS calls for a Review of the Gambling Act 2005

The ‘Call for Evidence’ publication contains an introduction and 6 key areas which the government wishes to review. These areas are not particularly surprising given the current climate and recent changes made to the industry.

The areas are as follows ; Online protections – players and products, Advertising, sponsorship and branding, Gambling Commission’s powers and resources, Consumer Redress, Age limits and verification and Land based gambling.

The introduction runs through some figures for the Industry as a whole, it acknowledges that the National Lottery plays a big part and that the industry contributes to the economy (as well as 100,000 jobs). It also refers to the level of problem gamblers being approximately 0.5% of the adult population and how this has remained broadly steady around or below 1% for the past 20 years.

It is recognised that this review is required due to a shift in customer behaviour. In 2014 the act was amended to bring offshore operators into its scope and there is much evidence demonstrating how much online gambling in Great Britain has grown. However it also recognises that “This steady industry growth and shift to online have seen neither a marked increase in overall gambling participation, which has remained broadly stable between 45 and 48% of adults for the past five years, nor an increase in population problem gambling rates”

There is a general run down of what they have done so far to combat emerging problems, for example increasing the national lottery age to 18, cutting maximum stakes, increasing donations from operators, advertising bans).

The main aims set out are to create a safe environment with up to date regulations and a powerful regulator. The main objectives being to:

  • Examine whether changes are needed to the system of gambling regulation in Great Britain to reflect changes to the gambling landscape since 2005, particularly due to technological advances
  • Ensure there is an appropriate balance between consumer freedoms and choice on the one hand, and prevention of harm to vulnerable groups and wider communities on the other
  • Make sure customers are suitably protected whenever and wherever they are gambling, and that there is an equitable approach to the regulation of the online and the land based industries

After the initial 16 week call for evidence, the government will assess the evidence presented, alongside other data, with the aim of setting out conclusions and any proposals for reform in a white paper next year.

The call for evidence:

  1. Online protections – players and products
  • They are exploring a more interventionist method of monitoring customer player, including sharing data with other operators to spot issues. Discussion surrounding how this is easier online and should be utilised
  • More discussion surrounding the types of online gambling, “online gambling on slots, casinos or bingo games is associated with a higher rate (9.2%) than online betting with a bookmaker (2.5%)”
  • White labels are also coming into the firing line- “concerns have been raised that the companies who provide the brands may be seeking to use white label arrangements as they would be unable to meet the GB regulatory standards required to obtain a licence themselves, and that this therefore poses risks to consumers”
  • The attention is also back on loot boxes and whether they should be classed as gambling.
  • The questions:

Q1: What evidence is there on the effectiveness of the existing online protections in preventing gambling harm?

Q2: What evidence is there for or against the imposition of greater controls on online product design? This includes (but is not limited to) stake, speed, and prize limits or pre-release testing.

Q3: What evidence is there for or against the imposition of greater controls on online gambling accounts including but not limited to deposit, loss, and spend limits?

Q4: What is the evidence on whether any such limits should be on a universal basis or targeted at individuals based on affordability or other considerations?

Q5: Is there evidence on how the consumer data collected by operators could be better deployed and used to support the government’s objectives?

Q6: How are online gambling losses split across the player cohort? For instance what percentage of GGY do the top and bottom 10% of spenders account for, and how does this vary by product?

Q7: What evidence is there from behavioural science or other fields that the protections which operators must already offer, such as player-set spend limits, could be made more effective in preventing harm?

Q8: Is there evidence that so called ‘white label’ arrangements pose a particular risk to consumers in Great Britain?

Q9: What evidence, if any, is there to suggest that new and emerging technologies, delivery and payment methods such as blockchain and crypto currencies could pose a particular risk to gambling consumers?

Q10: Is there any additional evidence in this area the government should consider?

  1. Advertising, sponsorship and branding
  • The ASA becoming more concerned with online advertising, including advertising on social media
  • CAP is consulting on the content restrictions in the codes to ensure they reflect the latest evidence and provide appropriate protections for under 18s and vulnerable adults
  • The sponsorship of sports teams, particularly football and horse racing, is coming under scrutiny
  • The Questions:

Q11: What are the benefits or harms caused by allowing licensed gambling operators to advertise?

Q12: What, if any, is the evidence on the effectiveness of mandatory safer gambling messages in adverts in preventing harm?

Q13: What evidence is there on the harms or benefits of licensed operators being able to make promotional offers, such as free spins, bonuses and hospitality, either within or separately to VIP schemes?

Q14: What is the positive or negative impact of gambling sponsorship arrangements across sports, esports and other areas?

Q15: Is there any additional evidence in this area the government should consider, including in relation to particularly vulnerable groups?

  1. The Gambling Commission’s powers and resources
  • Intentions to ensure the GC can respond effectively to new and evolving problems in the industry- including by ensuring it is adequately resourced
  • The Questions

Q16: What, if any, evidence is there to suggest that there is currently a significant black market for gambling in Great Britain, or that there is a risk of one emerging?

Q17: What evidence, if any, is there on the ease with which consumers can access black market gambling websites in Great Britain?

Q18: How easy is it for consumers to tell that they are using an unlicensed illegal operator?

Q19: Is there evidence on whether the Gambling Commission has sufficient investigation, enforcement and sanctioning powers to effect change in operator behaviour and raise standards?

Q20: If existing powers are considered to be sufficient, is there scope for them to be used differently or more effectively?

Q21: What evidence is there on the potential benefits of changing the fee system to give the Gambling Commission more flexibility to adjust its fees, or potentially create financial incentives to compliance for operators?

Q22: What are the barriers to high quality research to inform regulation or policy making, and how can these be overcome? What evidence is there that a different model to the current system might improve outcomes?

Q23: Is there evidence from other jurisdictions or regulators on the most effective system for recouping the regulatory and societal costs of gambling from operators, for instance through taxes, licence fees or statutory levies?

Q24: Is there any additional evidence in this area the government should consider?

  1. Consumer redress
  • Currently operators are punished by the GC, concerns are that individual customers do not get compensation (other than ADR for contractual failings)
  • Concerns this does not include SR problems and that customers would have to go through the courts for this
  • The questions

Q25: Is there evidence of a need to change redress arrangements in the gambling sector?

Q26: If so, are there redress arrangements in other sectors or internationally which could provide a suitable model for the gambling sector?

Q27: Individual redress is often equated with financial compensation for gambling losses. However, there may be risks associated with providing financial lump sums to problem and recovering gamblers, or risks of creating a sense that gambling can be ‘risk free’. Are there other such considerations the government should weigh in considering possible changes to redress arrangements?

Q28: Is there any additional evidence in this area the government should consider?

  1. Age limits and verification
  • Research shows that while the number of underage gamblers is down, the number of underage problem gamblers has remained stable
  • Intentions to review the minimum age for society lotteries as well as under 18s using gaming machines (such as slot machines)
  • More consideration is also to be given to the protection of those aged 18-24
  • The questions:

Q29: What evidence is there on the effectiveness of current measures to prevent illegal underage gambling in land based venues and online?

Q30: Is there evidence of best practice, for instance from other jurisdictions, in how to prevent illegal underage gambling?

Q31: What, if any, evidence is there on the number of 16 and 17 year olds participating in society lotteries?

Q32: What, if any, evidence is there to show an association between legal youth engagement in society lotteries and problem gambling (as children or adults)?

Q33: Is there comparative evidence to support society lotteries and the National Lottery having different minimum ages to play?

Q34: What are the advantages and disadvantages of category D slot machine style gaming machines being legally accessible to children?

Q35: Is there evidence on how the characteristics of category D slot machine style gaming machines (for instance whether they pay out in cash or tickets) factor into their association with harm in childhood or later life?

Q36: What, if any, is the evidence that extra protections are needed for the youngest adults (for instance those aged between 18 and 25)?

Q37: What evidence is there on the type of protections which might be most effective for this age group?

Q38: Is there any additional evidence in this area the government should consider?

  1. Land based gambling
  • Recognition that the land based operators have been hit badly by Covid-19
  • Concerns surrounding the relevance of the old legislation for land based, particularly in relation to the cashless economy and casinos
  • A review of both types of casino will be undertaken now there are several in operation
  • Questions as to whether local authorities have the power they need to manage the premises
  • The question:

Q39: What, if any, changes in the rules on land based gambling would support the government’s objectives as set out in the document? Please provide evidence to support this position, for instance how changes have worked in other countries.

Q40: What evidence is there on potential benefits or harms of permitting cashless payment for land based gambling?

Q41: Is there evidence that changes to machine allocations and/ or machine to table ratios in casinos to allow them to have more machines would support the government’s objectives?

Q42: What is the evidence that the new types of casino created by the 2005 Act meet (or could meet) their objectives for the sector; supporting economic regeneration, tourism and growth while reducing risks of harm?

Q43: Is there evidence on whether licensing and local authorities have enough powers to fulfil their responsibilities in respect of premises licenses?

Q44: Is there evidence that we should moderately increase the threshold at which local authorities need to individually authorise the number of category D and C gaming machines in alcohol licensed premises?

Q45: Is there any additional evidence in this area the government should consider?

If you have any queries on the above please contact Andy Woods (andrew@woodswhur.co.uk)  or Amanda Usher ( Amanda@woodswhur.co.uk)

How to respond to the Call for Evidence:

Email gamblingactreview@dcms.gov.uk with a document (word or pdf). This Call for Evidence will close at midnight on Wednesday 31st March 2021.

Everyone is welcome to respond, including international operators.

Your response must include Whether you are responding on behalf of an organisation or in a personal capacity; What questions/ topics you are responding to; Whether you want your response to remain confidential for commercial or other reasons, and whether you are willing to be contacted (if so please provide contact details).

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Lottery Sector Changes – Advertising and Gambling Commission Changes

Licence Conditions and Codes of Practice (LCCP) Changes

Operators should be up to speed with the latest version of the LCCP and aware that this currently is changing twice annually. The most recent changes to the LCCP that affect lottery operators are as follows:

  • Licence condition 15.1.1
  • Licence condition 15.2.1
  • Licence condition 15.2.2
  • Licence Condition 15.3.1
  • Social Responsibility Code Provision 6.1.1
  • Personal Licence conditions

It is important that operators read these conditions and understand how they may affect their day to day business and whether any policies need to be amended to reflect these changes and ensure compliance with the same.

The changes in the LCCP concern reporting obligations and display of licensed status for remote operators. It is always strongly advised that an up to date copy of the LCCP is readily available to all of those concerned with the gambling industry and, where hard copies are not presented, employees know where to find the most recent version (online).

The Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP)

CAP and BCAP have recently amended its guidance regarding the feature of children and young people in lottery advertisements. The wording of the original rules was:

17.15 Marketing communications for a lottery product may include children or young persons. No one who is, or seems to be, under 25 years old may be featured gambling or playing a significant role.

17.16 Marketing communications that exclusively feature the good causes that benefit from a lottery and include no explicit encouragement to buy a lottery product may include children or young persons in a significant role.

The amended wording of the rules is as follows:

17.15 [Marketing communications] for lotteries must not feature anyone who is, or seems to be, under 25 years old (under 25s) participating in gambling.

17.16 [marketing communications] for lotteries which include any reference to scratch cards or online instant win lottery products must not feature under 25s in a significant role. Other [marketing communications] for lotteries must not feature under 25s in a significant role unless either:

17.16.1 The under 25s are featured solely to depict the good causes supported by the lottery and there is no explicit encouragement to purchase a lottery product; or

17.16.2 The lottery primarily benefits under 25s (including in a family setting) and the under 25s featured are representative of the primary beneficiaries of the lottery.

 In addition to the changes of the wording, CAP have published guidance on the depiction of under 25s in lottery advertising and, in particular, what they deem significant role to mean. They have split the definition of significant role into “incidental” and “significant”.

Incidental

  • Under 25s seen as a minority part of a larger mixed age group, where the focus is on the group as a whole, e.g. a family a dinner.
  • Under 25s in the background of a shop that focuses on older subjects.

Significant

  • Speaking parts (or written equivalents in non-broadcast advertising).
  • The sole or primary focus of a shot, or being singled out in some way.
  • Holding promotional materials, such as a sign for the cause or lottery.

The distinction between scratch cards and instant win lotteries have always been of higher risk profile because of the potential harm to players.

It is important that you are aware of these new rules and ensure that your advertisements are compliant with the new rules.

Guidance from CAP can be found of the following link:

https://www.asa.org.uk/uploads/assets/c67c900a-3bb0-4f48-92f8569a074fb1d6/Guidance-on-the-depiction-of-under-25s-in-lottery-advertising.pdf

If you have any questions in relation to this guidance, then please contact Sarah Frow or Andrew Woods on 0113 234 3055 or sfrow@woodswhur.co.uk.

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One Step Forwards, Two Steps Back

Luke and I were chatting this week about topics for today’s newsletter and the fact it was impossible to write about what the likelihood was of licensed premises opening up after 2nd December when this lock down ends. We decided it was too speculative to try and second guess what is going to happen. A further lockdown, return to the previous tier system, new tiers–who knows really. As a result of our chat, and the decision to wait until we had some understanding of what is to happen, it made me realise how impossible it is for the trade to plan. We know for certain that nightclubs will not be able to reopen, I can’t see how the government will change their position and we have to wonder whether some of the late night venues will now ever reopen.

We are now approaching the busiest time of the year for restaurants and bars. The next 5 weeks usually generate the business which provides the revenues to get through the fallow months of January and February. Without these 5 weeks of bumper returns, many operators could fail–from small independents right up to the largest of multiple operators. What do you order in to sell? I saw one of my clients posting this week as they were disposing of beer stocks going out of date in this lockdown. It is a complete mess that is for sure and the lack of certainty for planning is shambolic. We represent significant National Casino and Bingo operators and we have seen ever-changing schedules of who is open, who is on furlough, who we should deal with. It is taking a huge amount of effort for lots of these operators to change their style of operation to match what they can do, and have to do to provide a COVID safe environment.

2021 will be Andy and my 30th year as qualified solicitors specializing in the Leisure and Gambling sector. We have seen huge challenges in that time but we are both confident that as we pull out of this pandemic we will see the leisure and gambling sector show new buds of growth. Some, but not all, will come through the hardest of times. It is those who had viable, successful business which don’t survive who you feel the most sorry for.

What we are seeing is fresh challenges every day. The industry looks at bringing in innovative new ways to create a safe environment, and then people behave in such a way that it puts their licence in jeopardy. When we came out of lockdown I was in one of my client’s premises and was shown how the QR code worked. Scan it on your phone, up pops a menu, you order and pay without leaving your seat, and your drinks are delivered to you at your table. Wow, I was so impressed and the operator told me how they were able to go cashless in their premises and control the number of staff they needed so much more accurately. Good for the operator, good for the customer–win win. But, one step forwards, two steps back…every time something good comes forward, people begin to behave to frustrate the system. I had a meeting with the police and council licensing officers in Leeds. Great to see them, in a socially distanced environment with our masks on. It was at this meeting that they explained the new pitfalls of the QR system and remote ordering. People have been ordering drinks through these app-based systems for different tables or even adults have been ordering on their credit/debit cards from home for their kids in licensed premises. This brings about a whole new set of issues over assessing the age of people as they have their drinks delivered. Training of staff to ensure that challenge 21/25 is still taking place when alcohol is delivered to the table is now even more vital. It also brings about monitoring what people are drinking, how much people are consuming and how quickly, if they aren’t ordering their own drinks. Strong management right through all staff is going to be critical and I cant thank the officers enough for bringing this to my attention.

Luke and I have also been discussing Cumulative Impact Policies over the last few days as we delivered a session at the IOL virtual conference, on where they sit post pandemic. What is for sure is that every single CIP has been developed on data which is now fatally flawed and out of date. Lots of licensing authorities will be coming up to reviewing their policies, which they have to do at least every three years. Lets hope this is an open and honest process and we look carefully at what the landscape looks like now as opposed to when the policy was derived. We are making applications at the moment in CIP areas and trying to explain to committees why a fresh approach needs to be taken. Fortunately we have, for the most part, seen sense prevail and a good pragmatic approach being taken.

We are hoping for better news for the bar, leisure and gambling sectors as we approach the release from lockdown, whatever the government plan we will be hear to help and advise all of our clients.

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The Latest Coronavirus Regulations

More rules are upon us! Once again the country has stopped in its tracks and scrambled to decipher the government’s latest attempt to tackle the pandemic. Unfortunately for many the leisure industry is taking the biggest hit in the new regulations.

A number of these new precautions are already in place in local lockdowns and are generally aimed at minimising the risk of transmission and infection. The official legislation was released overnight:

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020

“Restrictions on opening hours of businesses and services

4A.—(1) A person responsible for carrying on a restricted business or providing a restricted service (“P”) must not carry on that business or provide that service during the emergency period between the hours of 22:00 and 05:00, subject to paragraphs (2), (3) and (4).

(2) Paragraph (1) does not prevent P selling food or drink for consumption off the premises between the hours of 22:00 and 05:00—

(a) by making deliveries in response to orders received—

 (i) through a website, or otherwise by on-line communication;

 (ii) by telephone, including orders by text message; or

 (iii) by post; or

(b) to a purchaser who collects the food or drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle.”

What has changed in restaurants and bars?

The main changes for restaurants, pubs and bars are the 22:00 curfew, staff and customers wearing face coverings and mandatory table service.

The Guidance on face coverings states; ‘a face covering should cover your nose and mouth while allowing you to breathe comfortably, fit comfortably but securely against the side of the face- be secured to the head with ties or ear loops, be made of material that you find to be comfortable and breathable, such as cotton, ideally include 2 layers of fabric’. There is a debate at the moment as to whether a visor complies with this guidance as it is not fixed to the side of the face.

Customers may take off their face covering when eating and drinking, but must don them when using toilet facilities and on entering and leaving the restaurant. Staff in retail must also now wear face coverings. Those already exempt from face coverings will remain exempt.

The curfew kicks in at 22:00 sharp, not a call for last orders or a wind down but a closure at 22.00. Operators will need to think about how and when they begin to wind down in order to comply with this.

Many venues have launched table service phone apps which have thrived in the current conditions, these kinds of innovations to service will continue to help operators to comply with conditions and maintain their business. It is worth noting that the strict table service rules only apply to venues serving alcohol. For those who aren’t, they must still take “all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink on the premises”.

Operators must also be clear on the Rule of 6 (more on this later), specifically not allowing bookings of more than 6, unless they are a ‘bubble’ or household, and not allowing mingling. The social distanced table layouts will need to remain in place.

The good news is delivery services may continue, providing they are delivery and not collection.

Who else does the curfew affect?

The curfew also affects businesses providing food or drink prepared on the premises for immediate consumption off the premises, social clubs, casinos, bowling alleys, cinemas, theatres, amusement arcades (and other indoor leisure centres or facilities), funfairs, theme parks, adventure parks and activities, bingo halls and concern halls

However, whilst all of the above are subject to the curfew, some are not required to provide table service as they are not in Part 1, Schedule 3 of the regulations. These are bowling alleys, cinemas, theatres, amusement arcades or other indoor leisure centres or facilities, funfairs (indoors or outdoors), theme parks and adventure parks and activities, bingo halls and concert halls.

There has been some additional guidance released on cinemas, theatres and concert halls, who can stay open after 10pm only if the performance started before 10pm and provided they do not serve food or drink after this time, however for the rest of the venues on this list it remains to be seen whether any additional guidance will be released.

There are some venues exempt from the curfew, including supermarkets, convenience stores, corner shops and newsagents, pharmacists and chemists, petrol stations, cafes or canteens (at a hospital, care home or school, prison) and services providing food or drink to the homeless.

What about hotels?

Hotel bars and restaurants are specifically included in the 22:00 curfew, however the hotels themselves should be able to continue to operate and may provide room service provided it is by delivery only. The regulations are not absolutely clear on this point but certainly if the hotel bed rooms are not included in the licensed area then the delivery of alcohol and food to a bedroom will be an off sale. It appears that the government has not considered the situation in which the licensed area is actually included within the red line of the licensed area but there is no mention of service to hotel rooms being prevented after 22:00. Hotels must close the bars and restaurants at 22:00 .

Track and Trace

Some slight changes to the national track and trace system thanks to the launch of the NHS Track and Trace app. Businesses will be required to display the official NHS QR code allowing customers an alternative to providing their contact details.

The Rule of 6

The exemptions to the Rule of 6 are being narrowed, with the only exemptions now being organised outdoor sport, organised indoor sport for disabled people, weddings (maximum of 15 people) and funerals.

Therefore all other gatherings, including eating in a restaurant, participating in indoor sports or going to a bowling alley, must now only be undertaken in groups of 6. There is still discussion ongoing as to whether this means only 6 people will be allowed in the venue at any one time, or whether several groups of 6 will be allowed into the venue (where social distancing allows for it).

Support groups are limited to 15 people.

What has changed for Taxis?

Whilst the likes of Uber had already implemented mandatory face coverings, this is now the case in all taxis and private hire vehicles.

When does this all kick in?

The majority of these measures take effect on 24 September 2020, and are threatening to last for the winter.

From 28 September even more of these measures are set to become law, and consequently a wider range of businesses in breach will be subject to fines, including:

  • ensuring customers observe the rule of six, and appropriate social distancing through signage, layout, and managing customer entry.
  • reminding customers to wear face coverings where mandated.

Employers will also be banned from requiring self-isolating employees to come to work.

We will keep you updated as matters progress…

https://www.legislation.gov.uk/uksi/2020/1029/pdfs/uksi_20201029_en.pdf

https://www.legislation.gov.uk/uksi/2020/684

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Gambling Commission suspends Genesis Global Limited’s operating licence

Section 116 of the Gambling Act 2005 allows for the Gambling Commission to commence a review of an operating licence. A review can be commenced if the Commission:

  • Has reason to suspect that activities may have been carried on in purported reliance on the licence but not in accordance with a condition of the licence,
  • Believes that the licensee, or a person who exercises a function in connection with or is interested in the licensed activities, has acquired a conviction mentioned in the Act, or
  • For any reason-
    1. Suspects that the licensee may be unsuitable to carry on the licensed activities, or
    2. Thinks that a review would be appropriate.

It is clear from the above that a review of the licence can be brought from a broad range of circumstances, commenced by the Gambling Commission.

The Gambling Commission have the power to suspend operating licences in accordance with Section 118 of the Gambling Act 2005. The Gambling Commission have confirmed that they have decided to suspend Genesis Global Limited’s licence as they suspect they have breached a condition of the licence and also suspect they are unsuitable to carry on the licensed activities. The suspension is pending the conclusion of the review. This means that the suspension, effective from 20 July 2020, makes it illegal for the operator to offer gambling services in accordance with the active domain names on the licence, of which there are 12.

Genesis Global Limited have confirmed its intention to appeal the decision to suspend the licence whilst confirming that they have co-operated with the Gambling Commission in accordance with previous compliance inspections.

In addition to the most recent announcement, the Gambling Commission also suspended Stakers Limited’s licence from 04 March 2020, a suspension which remains the case at the time of writing.

This is concerning news for operators who may be subject to a review by the Gambling Commission and are immediately suspended, pending the conclusion of the review, from providing gambling services to its customers regardless of operators willingness to co-operate with the Gambling Commission.

No detail has been provided as to the failures of the compliance issues identified however we do know that the Gambling Commission have been focussing on gambling harm and affordability issues as a priority, especially as a result of the covid-19 pandemic and the protection of consumers.

We will be keeping a watchful eye on the progress of this matter, in addition to any appeal brought by the operator after its public statement sets out that the suspension will be ‘vigorously appealed’.

If you have any questions concerning licensed operator status and Gambling Commission enforcement/reviews then please do not hesitate to contact Andy and the gaming team on 0113 234 3055 or by email Andrew@woodswhur.co.uk.

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Data Protection and Contact Tracing – How do Businesses Ensure Cross Compliance?

COVID-19 has seen unprecedented change across all sectors in which everyone has had to adapt and change at a speed.

The government has provided guidance in relation to contact tracing in which they state that organisations in certain sectors should collect details and maintain details of staff, customers and visitors on their premises. Test and Trace is run by the NHS and is a key part of the country’s ongoing COVID-19 response. NHS Test and Trace includes contact tracing staff working to contact everyone that has been potentially exposed to COVID-19 which will assist in eliminating the spread and controlling COVID-19. This scheme is entirely voluntary and the accuracy of the information provided is solely the responsibility of the individual who provides that data. There is no requirement for business to verify an individual’s identity for NHS Test and Trace purposes.

Therefore you may be faced with the situation of collecting personal data, but ensuring you handle it lawfully.

The Information Commissioner’s office, the regulator for data protection, has issued some guidance to organisations regarding protecting customer and visitor details. This can be summarised as follows:

  • Ask for only what’s needed.
  • Be transparent with customers.
  • Carefully store the data.
  • Don’t use it for other purposes.
  • Erase it in line with government guidance.

There are some important key points to be aware of above. In particular, it may be tempting to include individuals personal data on any marketing and mailing lists. However, it is clear that this personal information cannot be used for his purpose where the collection of the data is as a result of contact tracing in line with government guidance.

Although the retention of data for the purpose of track and trace cannot be retained for marketing purposes, you may wish to consider whether you ask express permission for this ability and ensure it is separate and not a requirement of individuals providing their details for the purposes of track and trace. You will need to consider your privacy policy and have clear processes to ensure personal data is collected lawfully.

Another important point is that of retention. The government guidelines currently specify that personal details should be kept for 21 days, which reflects the incubation period for COVID-19 and an additional 7 days. The personal data that is collected for the purpose of contact tracing must be deleted after this time. Please note that records which are made and kept for other business purposes do not need to be disposed of, and this only relates to that of contact tracing.

Now may be the time to look at your organisations privacy policy and also ensure that customers are aware of the collection of their personal data in line with an organisation following government guidance in relation to contact tracing. With the rapid changes we have experienced recently the law in a variety of areas has changed or been relaxed. In some areas it could be said the law conflicts on certain topics. Sadly it is your burden to reconcile how it impacts all your organisation and steer a lawful course through it all!

If you have any questions or are not sure about your requirements of data protection, Covid-19 or any other regulatory matter, then please contact the regulatory team at Woods Whur and we would be happy to discuss the guidelines with you in accordance with GDPR and your wider obligations. If you would like to contact us, please email james@woodswhur.co.uk or sfrow@woodswhur.co.uk or call us on 0113 234 3055.

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Easing of Lockdown Restrictions – What does that mean for employers and keeping employees safe

We have recently seen the Government announce its roadmap to easing and lifting the current restrictions in place as to movement, business closures, and social distancing. There has been a raft of guidance published to ensure that businesses are ‘Covid-ready’ and it appears that attempts are now being made to re-engage the economy after the enforced shutdown to restrict the spread of Covid-19.

In addition to the Government announcements, the Chief Coroner published guidance on 28 April 2020 in respect of Covid-19 deaths and possible exposure in the workplace. Within this document, it confirms that the majority of deaths from Covid-19 are due to the natural progression of a naturally occurring disease.  There is therefore no reason for every death caused by Covid-19 to be referred to a Coroner.

The note does, however, go on to state that in some instances, it is appropriate to make a report under RIDDOR (the Reporting of Injury, Diseases and Dangerous Occurrences Regulations 2013) when:

  • An unintended incident at work has led to someone’s possible or actual exposure to coronavirus.  This must be reported as a dangerous occurrence.
  • A worker has been diagnosed as having Covid-19 and there is reasonable evidence that it was caused by exposure at work.  This must be reported as a case of disease.
  • A worker dies as a result of occupational exposure to coronavirus.

Failure to report a RIDDOR reportable incident is a criminal offence which, if found guilty, is punishable by way of unlimited fine or, where an individual has committed the offence and in the most serious of occasions, a custodial sentence.

A lot of employers may not be directly associated with the risks concerned with coronavirus, as there is in, for example, a hospital setting. However, the recent advice note from the Coroner reiterates that there is a risk out there for all employees, regardless of the industry, in that this could be RIDDOR reportable and therefore, there is exposure of liability to the employer in possible civil & criminal terms.

Following the Prime Minister’s announcement on Sunday 10 May 2020, the restrictions have started to ease from Wednesday 13 May 2020 to allow those people that cannot work from home to go back to work. This is conditional on employers having the suitable safeguards in place needed to ensure that risks have been considered as a result of the coronavirus outbreak and to implement social distancing as required.

You should consider carefully asking employees to return to their places of work without proper plans in place to effectively protect your employees from the risks connected to Covid-19. There is some helpful guidance on the Government website confirming that all employers, before allowing employees back to work, must have completed a specific risk assessment concerning the risks associated with the spread of Covid-19, which is to be circulated and sent to the employees working in that office/space/location.

Life and work as we know it has temporarily changed and this does not stop where there has been the lifting of restrictions. It is an obligation for employers to ensure the health and safety of its employees and manage any risks associated with employee’s completing their work on a regular basis. These are unprecedented times, however, this duty has not changed since the Health and Safety at Work Act 1974 came to be law. Remember the risk assessment process of identifying risks and adopting measures to reduce or remove them. This long standing process is equally applicable to Covid-19 as it is to working at height, manual handling etc.

We hope that this article has provided a useful reminder in the, what feels like fast moving situation that we are all currently facing. We hope you are all keeping safe and well and if you would like to discuss this article in more detail and how you can prepare effectively by way of implementation of policies or effective management of risk, then please do not hesitate to contact James and Sarah on james@woodswhur.co.uk or sfrow@woodswhur.co.uk to discuss this.

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What a difference a week makes

Last Friday I had a meeting in Manchester followed by a client lunch where we were pre-occupied with discussing how our businesses were going to cope with the Coronavirus outbreak. None of us realised that a week later, the leisure and gambling industries would be so badly affected or by the pace of change. I didn’t anticipate then that I would have asked all of my staff to start working from home and put us into almost isolation. Technology is a wonderful thing and it is amazing that we can keep our business going through remote access to our systems. This doesn’t come anywhere near to the social interaction that we have through the workplace.

A usual Friday morning in the office, in dress down clothing and with a fantastic breakfast sandwich from Nosh, is one of the best days of the working week.

So much has changed at such speed.

On Monday and Tuesday of this week, all of our outstanding hearings at licensing authorities around the Country were stood down. These were some review hearings and some premises licence applications that had valid representations. In all of those cases we have been told that the likelihood is that these will not be relisted until after May. This is obviously going to put breaks on the development plans of a number of companies. We also have a number of applications which are currently running through their notice periods and if they receive valid representations, it is in doubt a hearing on those particular will be listed.

I did notice last night that Wandsworth Council held a remote hearing where technology was used to get everybody to remotely log into the hearing.

I have had this previously where I was permitted to dial into a summary review interim steps hearing even though I was away on holiday. It just shows that there is the ability and technology to set this up should we enter a prolonged period of isolation. Gary Grant, the Licensing Specialist Barrister from FTB Chambers, wrote an excellent article entitled ‘Licensing hearings during the Coronvirus crisis.’ This article set out the fact that there is an ability for remote hearings to take place. He highlights that there is no legal bar to holding a Licensing Sub-Committee using remote technology. This will be practically very difficult, albeit legally possible, in that most authority areas have started to send their staff home to work remotely as well. This is to continue and the likelihood is that applications will be adjourned rather than more remote hearings.

There are clearly significant operational issues that come about whilst premises are still open. It is critical that the licensing objectives are promoted by operators who choose to stay open and conditions on premises licences will need to be complied with. If anyone has any confusion of where we are on this then please contact us directly by mobile number or email.

In addition, the Business Crime Hub from the Metropolitan Police Service have sent out a very helpful note in relation to their position moving through unprecedented times.

Our colleagues in Scotland have been grappling with the issues as well and Glasgow City Council have sent out a very clear “advice and guidance for current licence holders and new applicants on changes to our licensing service.” This is to last for the period of Covid-19 outbreak.

This highlights that there are to be no face to face appointments. All planned meetings with the licensing and regulatory committee and the City of Glasgow Licensing Board have been postponed.

In addition, they are asking that only the most essential applications are submitted and if they are submitted, they should be sent by electronic means rather than paper work.

Glasgow have moved very quickly to set out a very clear guidance document which can be found at the following link – http://www.sllp.co.uk/TWLinks/C19.pdf.  We understand that most other Scottish Licensing Boards are offering similar advice to clients.

The Gambling Commission is sending out regular notifications as to their expectations during these testing times.

In the most recent email sent yesterday, the Commission highlighted that they are following Public Health England’s Guidance and have told all staff to work from home until further notice. They have set out that the Commission has set out a well-practiced and comprehensive business continuity plan that they have invoked with the intention of minimising the impact on their regulatory and advice services.

The Gambling Commission have highlighted that whilst these current circumstances create unprecedented changes to daily life, that these changes will also increase the risks to some individuals which mean that despite the fact that these are changing times, customers must be protected by operators.

They set out “first and foremost we expect all our licensees to follow the applicable Public Health guidance, which I am confident you will already be doing. Where facilities for Gambling are being offered, we expect all our licensees to ensure that they have sufficient management, staffing and an oversight in place to maintain compliance with the LCCP that apply to their licences.

The social distancing measures that are being put in place will mean that more people will be at home and we would like to remind online operators that they must continue to act responsibly, especially in regard to individual customer affordability and increase social responsibility interactions.” – Neil McArthur. This is a clear message that the Gambling Commission expects licensed operators to be increasing their social responsibility principles during this period. In addition, the Gambling Commission have written to us directly to ask that we do not send any documents by post. All documents to be received are expected to be scanned and sent electronically.

They are currently deciding how to proceed with personal licences, usually they require an original identification to be provided but are going to be determining how to deal with this during the currency of the outbreak.

It is clear that the Gambling Commission is seeking to provide a service as close to normal working life as possible.

The taxi licensing sector is going to be seriously affected through the Covid-19 outbreak.

The Government guidance is that no driver should be working if they have a new continuous cough and/or high fever and should obviously at that point self-isolate.

Drivers of Hackney Carriage or private hire vehicles, Hackney Carriage and private hire proprietors and private hire operators have responsibilities under the Health and Safety at Work Act 1974 to both themselves and those who are likely to come into contact with their business.

We would hope to see that taxi licensees are frequently cleaning and disinfecting objects and surfaces that are touched regularly.

They will have been reminded of the following document – http://r20.rs6.net/tn.jsp?f=001ORzch4VgR_8_4jtHWPrUhWWXUFEwPk1_yOx0G_BvwCVE3JgV7KFDkHPQLVdB6-mnHKtXBIf9D1jSjJ734LV2TMR1XtsIMLvnHr9xulnjGD30DGLmenz_JiAMNHnev78MjVN8LtMIFJ0dgvo3_cwki5eaFxCXB7J0IRcX4z7jb90l5Q_bpeiomNoX5NFdfxuU2zTS8JXMfav1GTWBRLaxHyArFqnXeanjwAiOWwOeItGPSPaEYk044ST_yHdsvMDrCGNbEvLJz_2Dn14ayhV5vPYxQ46JOAmwQOE0Y7l0K5Wj6JEQsl3AMNcnumKAjhM4EXaLUrIFGzUSIs-e3jhnTfqOTjxvuvOUcxOMbI8jQJI=&c=8o17pjsQEdLRrknxnpRasOps3Ta5IG1AoK62O9nwvRAR5wEMVqqstw==&ch=BlkNCzs5PWMCwu2JegPktSao_dEXzv_JXLr8B99FSikLegMQ4yKqRQ.

We are certain that taxi’s will continue to play a vital role in the movement of people through these difficult times.

It is now becoming clear that we are going to be in a protracted period of different working practices. We hope that everyone will look to make the licensing process and regulatory remit as user-friendly as possible during this period. I have had a significant number of messages from operators asking how our team is and the element of interaction has been high. This is at a time when their own businesses are closing for public safety reasons.

Having being in the leisure sector for over 30 years, I can attest to the fact that they are a resilient bunch. It’s now imperative that the Government give significant financial support so that these businesses, viable until the outbreak of the Coronavirus, have the ability to come through the other side and provide the much needed distractions that we will all be looking forward to by then. The measures so far announced don’t go far enough and it is hoped that the Councillor will be making more practical announcements later today which can come into effect very quickly. A significant number of my clients have been posting that they are now closing voluntarily until we are through the worse of the virus. These are fabulous responsible operators, viable businesses, who deserve to be supported by central Government.

Paddy

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CORONAVIRUS AND WOODS WHUR

These are unprecedented times. Andy and I have worked in the leisure sector for over 30 years and it is hard to watch what is happening.

We have acted for some of our clients for nearly the whole of that period and they have become more than clients, they have become very close friends.

We are hopeful that the Government will announce packages today which will give the leisure sector the support to get through the next few months. Many successful businesses will be pushed to the very limit.

I have just asked our staff to work from home from tonight, something I never thought we would have to do.

We will maintain a skeleton presence in the office but we have invested in a fabulous practice management system, skype and digital dictation which means all of our team can work safely at home.

Importantly we will continue the same level of service which we always strive for…..as the Legal 500 said….”the client always comes first.”

Please stay safe, and do not hesitate to contact us if there is anything we can help with.

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Is a Review of the Gambling Act 2005 likely?

The Gambling Act 2005, which came into force on 1 September 2007, made significant changes to the legislation which governs betting and gaming in the UK.  It is easy to forget that were it not for a last minute deal relating to certain parts of that legislation,  Tessa Jowell would not have been able to get the proposed changes through Parliament. There is no doubt that the changes introduced by the Gambling Act 2005 have had a major impact on gambling in the UK but even though it is only 15 years old it is now being argued that it is already out of date.

The view of most experts following the introduction of the Act in 2007 , was that most political parties would be likely to leave the legislation untouched, principally because there was no real political benefit to any of the parties trying to implement any changes.  It was felt that there would be criticism either from the anti-gambling bodies or from the gambling industry  no matter what changes were made.

The 2019 election appears to have changed all of that.  The Conservatives pledged in their manifesto to conduct a review of the 2005 Gambling Act and this followed similar commitments from the Liberal Democrat and the Labour Party. The Conservative Party promised to “make the UK the safest place in the world to be online”.  The general view appears to be that the Gambling Act 2005 is no longer fit for purpose and that the innovations brought in by the industry during the last 15 years  have far outstripped the ability of the Gambling Act 2005 to be an effective piece of legislation. There were particular concerns expressed with regard to problem gamblers not being protected by the Industry, credit card use, loot boxes and a general lack of social responsibility on behalf of the industry.

There have already been some minor changes introduced as credit card gambling is not permitted from the 14th April 2020 other than by non-remote lottery players and the Gambling Commission are undergoing further consultations as this article is being published. Concerns over gambling addiction and the lack of protection for gambling addicts, coupled with an increasing concern about “affordability of gambling” has already been well documented in the press during the last two years.

The Gambling Commission itself has significantly increased the amount of regulatory inspections it carries out and the amount of regulatory cases which are being brought against operators, principally for not complying with anti-money laundering legislation or social responsibility guidelines.  You only have to look at the Gambling Commission website to see the extent of the recent cases and the financial penalties which have been imposed.  Whilst on the one hand the industry argues that AML and SR policies and procedures are constantly evolving to meet the needs of society and the challenges set by the Gambling Commission, it does appear that the Gambling Commission is wholly dissatisfied with the AML and SR policies and procedures operated by the industry in general.

It seems to me that we are quite clearly at the stage now where there is the political will to make changes to the legislation, and that whilst it might not be the most pressing piece of legislation that the Government deals with in 2020 and whilst we may not see the widespread changes that many would like to see, it is clear that there will be a thorough review and changes to the Gambling Act 2005 sometime in the near future.

Those changes will include:

  • A potential ban of certain advertising by gambling companies and new restrictions placed on advertising.  Whether this extends to football clubs and advertising at football grounds is a debateable point.  The Premier League has already stated that it will oppose any blanket ban on gambling advertising, either on shirts or at the grounds, and yet there is growing lobby of those who would like to see this.
  • Increased social responsibility and affordability guidelines and regulations. This may change the overall principle from:

(1) “Does this customer have a gambling problem in any form / are we okay to allow this customer to gamble”; to

(2) “Does this customer have a gambling addition, are we okay to allow this customer to play, can this customer afford to play, how will the customer spend impact on the customer’s finances and how will this impact on other family members etc.”

  • AML and KYC checks will be tightened. The extent of due diligence information which casinos and online operators in particular need to have on those customer who play to a certain limit is already well detailed, but it is likely to see this source of information (enhanced due diligence) extended further.
  • Gambling to be seen as a public health issue, which brings into question, the role of any public health body during the course of any consultation/review.
  • A potential levy from problem gambling funding with gambling addiction being treated in the same way as drug and alcohol addiction.
  • An increase in regulations governing on line gambling
  • Source of funding and source of wealth and the information required in respect of both of these will also be extended.

All of the above is on the back of increased scrutiny by the Gambling Commission, the limit on fixed odd betting terminals being reduced to £2 and the credit card ban on all gambling with the exception of non-remote lotteries.

The majority of national operators have already been through the process of a regulatory review and in some cases, on more one occasion and in many cases, leading to significant financial penalty.  It has just been reported at the start of the February that the Commission has handed out large fines to seven bookmakers for allowing under 18s to place bets on a course and a further reviews with other operators are likely in 2020.

All of the above is of course dependent on the Government have sufficient time in Parliament to implement new legislation.  Gambling Commission guidelines and regulations can be changed without primary legislation so there will be a tightening of controls over gambling operators, irrespective of any decision to change primary legislation and it is absolutely essential that operators keep up to date with any changes to these guidelines and regulations during what will be a challenging time for operators.