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GUIDANCE NOTE – Online draws and raffles promoted by members of the public with proceeds going to a society

The Gambling Commission (GC) national strategic assessment has recognised the increasing presence of ‘social media lotteries’ and the increasingly prominent risk of exposure to unlicensed gambling.

Social media lotteries are a growing issue due to their increasing presence on Facebook and other social media platforms. Historically such lotteries were low-level events, and intelligence identified many were being run from home by a small group of people and for low value prizes. However recent intelligence suggests larger, more organised operations may be in effect, generating significant profit.

The Gambling Commission deems social media lotteries, including those run by influencers, to be unlicensed gambling and therefore unlawful.

The following guidance has been provided by Woods Whur and Woods Valldata to assist Societies in ensuring they are aware of the risks ‘social media lotteries’ present as well as safeguarding the societies’ obligations concerning promoting the GC’s licencing objectives and not supporting unlicensed gambling.

Q: What makes a draw promoted by members of the public on social media platforms and giving sites such as Just Giving, Virgin Money Giving etc. an illegal lottery?

A: The requirements that meet the definition of a lottery are set out within Section 14 of the Gambling Act 2005 (the Act) and, specifically, a simple lottery is one where:

  • There is a requirement to pay
  • One or more prizes are awarded
  • Those prizes are awarded by chance.

Therefore, if someone is required to ‘donate’ to be eligible to be entered into the draw this would meet the requirement to pay element of this definition. The other points regarding the prizes and those prizes are awarded by chance would mean that the promoter would be promoting an illegal lottery.

There are different requirements for a lottery to be defined as a ‘complex lottery’.

Q: What if the person promoting the draw on social media platforms and giving sites is part of a club or organisation, would it still be an illegal lottery?

A: Lotteries are regulated under the Act and must be either licensed by the GC or registered with a local authority, depending on the size of the lottery. It is illegal for a lottery to be run without a licence or registration.

Q: Can a member of the public register themselves as a small society lottery with a local authority?

A: An individual, group or organisation would need to set themselves up as a non-commercial society to allow them to promote a lottery. It is not a requirement for this to a be a registered charity, but the promoter must be promoting as a non-commercial society and be able to show evidence of this when applying to be registered with the local authority.

Q: What should a Society do if they become aware a member of the public is running an illegal lottery with proceeds going to the Society?

A: If the individual changes the route of entry to allow both paid (donation) and free entry into the draw this would then be permitted and classed as a ‘free draw’ and therefore does not need to be licensed or registered. The definition within the Act requires payment for each entry. Where there is the option for entrants to be entered via a ‘free route’ then this would not be classed as a lottery in accordance with the Act.

Q: Would a Society need to refund any monies already donated whilst it was an illegal lottery?

A: There is no direct Licence Condition in breach as the Society has not promoted the lottery however a Society should be mindful of the overarching licensing objectives to which it must operate, i.e. gambling is to be conducted in a ‘fair and open way’. Where societies and charities become aware of illegal lotteries all efforts should be made to return the monies and confirm the position regarding acceptance of illegal lottery proceeds.

Q: Are there other types of lottery that do not require any licence or registration with the Gambling Commission or local authority?

A: There are a number of lotteries known as ‘exempt lotteries’ set out in Schedule 11 of the Act and they are as follows:

  • Incidental lottery: These can be held at both non-commercial and commercial events to raise money for charities and other good causes, but they cannot be operated for private or commercial gain. Lottery results can be announced during or after the event, but tickets can only be sold at the event and while it is taking place.
  • Private society lottery: These must raise money for the purposes for which the society is conducted or to raise funds to support a charity or good cause . The advertisement of the lottery can only be done on the society premises and only members or guests on the society premises are permitted to purchase a ticket.
  • Work lottery: These can be held at both non-commercial and commercial premises to raise money for charities and other good causes, but they cannot be operated for private or commercial gain. The advertisement of the lottery can only be done on that single premises and only employees at that single premises are permitted to purchase tickets.
  • Residents lottery: These must raise money to support a charity or good cause. The advertisement of the lottery can only be done on the premises and only residents are permitted to purchase a ticket.
  • Customer lottery: No profit can be made and the price payable must be the same, tickets must not be sold to children under 16 years of age. The advertisement of the lottery can only be done on the premises and only customers are permitted to purchase a ticket. A customer lottery cannot be conducted on a vessel.

In all the above lottery types there are also restrictions on deductions for expenses and prizes; requirements surrounding tickets and rollovers are not permitted.   These lottery types do not require a licence or authorisation if they meet the definition of the exempt lottery type.

For more information on running prize competitions and free draws please refer to the Gambling Commission guide: https://www.gamblingcommission.gov.uk/PDF/quick-guides/Prize-competitions-and-free-draws-quick-guide.pdf

For more information on ‘exempt lotteries’ please refer to the Gambling Commission guide: https://www.gamblingcommission.gov.uk/PDF/quick-guides/Running-a-lottery-quick-guide.pdf

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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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Health and Safety Executive Publish Statistics for 2019/20

If you have a health and safety or management role, you may have seen a number of articles concerning the HSE report. I hope that this article will provide a useful document to summarise the key facts and figures including that of trends in recent years.

Fatal Injuries

We have reported previously that the fatal statistics published by the HSE have shown a general flattening of work place fatalities from 2008/2009 through to 2020. Having said that, this year’s rate of fatal injury is the lowest on record (since records began in 1981) showing a rate of fatal injury (per 100,000 workers) of 0.34.

Once again, the highest number of fatalities by main industry group is that of construction. This is followed by agriculture; forestry and fishing; manufacturing; transport and storage; wholesale; retail; motor repair; accommodation and food.

Another trend which is common to see when looking at the annual statistics is that falls from height are the highest number of fatal injuries to workers by the kind of accident.

To summarise the fatal injury statistics, once again the figures show a long term trend of being broadly flat. It seems apparent that this year’s and next year’s figures will be impacted by the COVID-19 restrictions placed throughout the country and may, in turn, show a disproportionate reduction in workplace fatalities as a result of this. This is something to consider, not only with statistics of fatalities having taken place, but also when managing work places returning to work and the risk of harm following an absence be that through a compulsory lockdown or perhaps through self-isolation or long term illness.

Work Related Ill Health

The key figures here show that 1.6million working people are suffering from a work related illness and 38.8million working days have been lost due to work related illness and workplace injury.

Of those 1.6million workers, the statistics show those workers identified with stress, depression or anxiety account for 51% of work related ill health. 2019/20 figures show that the rate of work related ill health per 100,000 workers has increased this year following a broadly flat trend in previous years. In particular, the rate of self-reported work related stress, depression or anxiety has increased in recent years and again is shown in the statistics 2019/20. The HSE statistics state that work load, lack of support, violence, threats or bullying and changes at work are estimated to be the main causes of work related stress, depression or anxiety. It sets out that 17.9million working days due were lost due to work related stress, depression or anxiety in 2019/20.

It is apparent from the HSE that they are concerned about the rise in figures and have provided additional guidance in respect of managing the risk of this type of workplace illness.

Mental health  has always been a difficult risk to manage as it is intangible and no one size fits all approach is applicable. It is important that you are aware of the statistics and increases in these types of work related illnesses to allow you to review your policies. It is important that your employees are supported and not suffering as a result of work. An aggravating factor will be that of COVID-19 and the impact this has had on all of our lives both personally and professionally. Please bear in mind that just because the impact of Covid-19 has affected everybody, this does not relieve you of your obligations under health and safety law.

Enforcement

The HSE have prosecuted 325 cases that have resulted in a conviction in 2019/20. £35.8million of fines resulted from prosecutions taken by the HSE where a conviction was achieved in 2019/20.

Despite the eye-watering figures above, this year has seen a fall in the number of cases prosecuted by the HSE which continues a trend from 2014/5. In addition, enforcement notices issued by the HSE have decreased.

The HSE have made it very clear that enforcement has not stopped as a result of COVID-19 and the restrictions placed upon it. It is likely that we will see in the coming years enforcement related to COVID-19 and the measures put in place by organisations scrutinised.

Conclusion

To conclude, the key points from these annual statistics are as follows:

  • The number of workers killed at work in 2019/20 is 111.
  • The most common type of fatality in 2019/20 is that of a fall from height.
  • Mental health is of concern and on the increase in relation to work related ill health.
  •  £35.8million was recovered in fines, which is a decrease on previous years.

It’s important to review these figures annually to understand long term trends and where increases/decreases are occurring. COVID-19 has had an impact on almost all elements of our lives, including that of health and safety statistics. The sharp increase in mental illness as a result of work is something that should be taken very seriously by organisations. It is important that you ensure communication with everyone at work and take a bespoke approach to individuals concerned with your organisation.

If you would like to view a summary of the statistics from the HSE, then please follow this link:

https://www.hse.gov.uk/statistics/overall/hssh1920.pdf

If you have any questions or concerns about your health and safety requirements, then please contact the regulatory team at Woods Whur 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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£450,000 fine for fatigued workers

One thing that is consistent throughout the work place today is the risks of stress, tiredness and in some cases the fatigue of employees.

Where deadlines, important contracts and absenteeism levels are just a few pressures within all organisations. The employer must be alert to the risks that these pressures present on employees, with fatigue being a common issue that is rarely formally identified and therefore in turn rarely acted upon, but perhaps unofficially well known within an organisation.

The most important point, as with most of our health and safety articles, is to complete an assessment of the risks for any changes to working arrangements and specifically to individuals. Such an assessment has to consider the risks posed by the shift work, the time off allowed, the nature of the works, location and rest periods to name a few areas to consider.

Don’t assume every employee is the same. An 18 year old may struggle on a night shift whilst a 60 year old may not. An employee’s goodwill or fear for their job if they refuse a particular working arrangement will not protect an organisation in the event of an incident or inspection.

A recent case concerning a fatigued employee has concluded in a contractor, Renown Consultants Ltd, being found guilty of health and safety offences, in a prosecution brought by the Office of Rail and Road (ORR). This prosecution followed a tragic accident in which 2 individuals died in 2013 following the driver falling asleep at the wheel after driving back from a night shift. The individuals were employees of the contractor and it was found that no risk assessment was carried out in relation to fatigue of the individuals in addition to not following its own fatigue management policy. As a result the employer in question was fined £450,000 plus prosecution costs.

Fatigue can often be happily ignored where an individual is willing to put in extra hours to assist the business, but as an employer, there is a duty to ensure the safety of employees under the Health and Safety at Work etc. Act 1974. Therefore, even where the individual is willing to work, this would not provide a defence in the event of a prosecution against a company in which an accident occurred and it was known to the company that the individual was essentially overworked.

To summarise, the key points are:

  • Communication with individuals is key and ensuring open communication and with trade unions if you have employees who are members;
  • Complete a risk assessment regarding the risks. Anticipate not just the normal working practices, but deal with fatigue in particular. How will you put measures in place to reduce or remove the risk? Fatigue is entirely foreseeable at work, so there is an expectation you will have considered and addressed it;
  • Implement a policy that sets out the company requirements as to working hours, overtime requests, on call duties, and shift swapping where applicable, using public transport.

As with most risks to the work place, ensure the systems are monitored, reviewed and updated to assess employee fatigue. If you would like to discuss this with any of the regulatory team then please do not hesitate to get in touch with Sarah: sfrow@woodswhur.co.uk.

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Asbestos in “Older” Properties – What Should You Know?

The contractor and the property owner was sentenced after pleading guilty to offences under the Health and Safety at Work Act 1974. The prosecution came about after a proactive inspection by the Health and Safety Executive (HSE) which shows that the risk of prosecution when no actual reported exposure has taken place.

Briefly, the law on managing asbestos is contained within the Control of Asbestos Regulations 2012. This requires a duty holder to manage asbestos by monitoring whether there is asbestos present and determining issues such as whether if it has been disturbed and required action to seal it or restrict access to it or to determine whether works need to be commenced for the removal of the asbestos. Duty holders are the owners of non-domestic premises (for example industrial, commercial or public buildings including those ‘common’ areas of domestic premises such as flats or houses converted into flats) or the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises, for example through an agreement or contract.

Asbestos surveys are required by law to determine the presence of any asbestos before any works are commenced on buildings. In the case referred to above, asbestos surveys were completed and they identified the presence of Asbestos Containing Materials (ACMs) however, these were not removed prior to the work. The building contractors were appointed whilst the property owner stripped asbestos from within the former hotel. This was not undertaken in a safe manner. Due to the extent of the spread of asbestos dust and debris throughout the building, whilst works were ongoing then it was deemed that workers and visitors to the properties were at risk of exposure to asbestos fibres.

Co-operation and the sharing of information with those that may come into contact is fundamental in this case and is required by the Regulations. The lack of sharing information is one of the main reasons there was deemed to be a risk in this case to workers and visitors to the properties.

Both the property owner and the contractor (B And SBM Limited) pleaded guilty and were sentenced in the case of the contractor to £22,000 and ordered to pay £5,000 in costs and the property owner was ordered to carry out 120 hours unpaid work in the community and ordered to pay costs of £7,500.

The above identifies again that work, including renovation work, to properties should be taken carefully and planned effectively with a clear step by step containment of any asbestos that may be identified. Clear steps should be considered as follows:

  1. Identification of any asbestos needs to be completed by way of survey and any other enquiries;
  2. Decide what to do with it by way of a suitable action plan;
  3. If necessary, instruct specialist contractors to remove/isolate the asbestos;
  4. Makes persons aware of the presence of asbestos. This could be residents/employees/other contractors/ any other visitors.

It is a misconception that is it only properties which are exceptionally old may contain asbestos, this is not the case and do not make that mistake when considering works on buildings. Asbestos can be found in any industrial or residential building built or refurbished before the year 2000 and even this date is no guarantee, the duty is on you as a duty holder to satisfy yourself.

If there are any concerns that you may have in relation to asbestos and it’s management, then please do not hesitate to contact Sarah: sfrow@woodswhur.co.uk.

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Westminster City Council’s Statement of Licensing Policy Consultation and Cumulative Impact Assessment – An Overview

A copy of Westminster’s policy review can be found here – https://www.westminster.gov.uk/sites/default/files/proposals_for_revision_of_slp_and_publication_of_cia_final_oct_2020_2.pdf

A copy of Westminster’s Cumulative Impact Assessment can be found here – https://www.westminster.gov.uk/sites/default/files/411_19_-_wcc_cumulative_impact_assessment_document_aw.pdf

Before we look at the detail of Westminster’s policy review and CIA here are some key dates for your diary:

  1. The consultation closes on Sunday 15 November 2020
  2. Westminster are holding an online question and answer session for local businesses on Monday 19 October 2020 from 5pm and you can sign up here – https://licensingconsultation2020-business.eventbrite.co.uk/
  3. Westminster are holding an online question and answer session for local residents on Monday 26 October 2020 from 4pm and you can sign up here – https://www.eventbrite.co.uk/e/licensing-policy-review-qas-with-westminster-residents-tickets-125002354407

Having read this note you may or may not decide that you want to respond to the council’s consultation to make your views heard. The council are inviting responses in a number of ways:

  1. By the completion of an online survey. This can be accessed by following this link: https://www.smartsurvey.co.uk/s/CIAConsultation2020/; or
  2. By emailing your comments to a dedicated email address, which is licensingconsultation@westminster.gov.uk; or
  3. By sending* your comments to:

Licensing Policy Consultation

Policy Team – Innovation and Change

17th Floor

Westminster City Council

Westminster City Hall

64 Victoria Street

* The council ask that if you are sending your comments by post that you do so in good time to ensure that they are received by 15 November 2020. As 15 November 2020 is a Sunday and the council office is likely to be closed we think this means received by Friday 13 November.

Westminster say

“With an uncertain future and the difficulties that the hospitality and entertainment sector face, we were very aware that to implement significant change in our Licensing Policy could add to that uncertainty. Therefore, our proposed approach to this year’s revision is to continue with the current policy approach where possible. We believe that this will provide a stable policy background whilst maintaining the protections for our residents and enabling businesses to operate in a responsible way.”

Such a statement might lead you to conclude that not much is changing in Westminster. Do not be fooled. As always, the devil is in the detail and in this article we are going to look at some of the main changes and what we think they mean for Premises Licence Holders and prospective applicants in Westminster. They are summarised by the council as follows:

  • Add a statement on the Licensing Authority’s expectation on licensed premises’ approach to inclusion in the evening and night-time economy
  • A summary of the 2020 Cumulative Impact Assessment
  • A revised policy framework for the Licensing Objectives Policies CD1, PS1, and PN1
  • A revised Protection of Children from Harm Policy (CH1) framework and the addition of safeguarding as a key consideration within that policy.
  • Retention of the existing West End Cumulative Impact Zone boundary, except for the North East area beyond Covent Garden, and to revise the policy framework for the Cumulative Impact Policy – CIP1
  • The removal of the Cumulative Impact Zones for Edgware Road and Queensway/Bayswater
  • A revised Core Hours Policy – HRS1 framework based on premises uses rather than licensable activities
  • A new Special Consideration Zone Policy- SCZ1
  • Revised policy framework for premises use policies and updates to policy narrative where necessary
  • Removing qualifying clubs from the theatres, cinemas and other performance venues policy, and expanding the policy to include a wider variety of cultural venues and live sporting venues
  • Creating a standalone policy for Qualifying Clubs
  • Minor updates and changes across the statement to references to law, guidance or Council policies/strategies.

Having been through the proposal document in some detail we have picked out what we see as the major changes that operators need to be aware of:

  1. The creation of Special Consideration Zones (SCZs);
  2. A change to the Core Hours policy based upon premises “type”; and
  3. A far greater onus to be placed on applicants in the context of the documents they will be expected to submit with their applications.

Special Consideration Zones

Westminster haven’t decided to increase the size of their West End Stress Area (Cumulative Impact Zone). In fact, they have reduced it slightly by carving out a small area to the northeast of Covent Garden. However, Westminster have designated a large area surrounding the existing West End Stress Area (as well as a number of other areas) as a Special Consideration Zone.

Special Consideration Zones don’t exist in the context of the Licensing Act 2003 or its accompanying Guidance. They are something that have been created by Licensing Authorities to apply to areas where they are considering putting in to place a Cumulative Impact Area. Westminster seem to be taking that approach one step further by inviting applicants to attempt to address the issues identified in the Special Consideration Zones when making their application. Time will tell, but it seems to us that Westminster are imposing a higher standard on applications in these areas than would be required outside of them.

Changes to Westminster’s Core Hours Policy

This is actually quite a substantial change to Westminster’s approach to core hours. Currently, Westminster’s policy distinguishes between premises that offer alcohol for consumption on the premises, premises that offer alcohol for consumption off the premises, and premises that offer other licensable activities but not alcohol. It is known as HRS1 and sits alongside Westminster’s policies for different types of premises e.g. RNT1 & RNT2, which deal with restaurants.

Westminster will now be following a model that has been adopted by lots of other Licensing Authorities and applying core hours to particular “types” of premises rather than across the board. Applicants will now need to consider what they are at the time of applying and cut their cloth accordingly. One problem we have found with these types of policies in other areas is that premises don’t always fall neatly into the categories that Licensing Authorities want them to. We have acted for many operators up and down the country of what have become known “Competitive Socialising Venues” and we have found that Licensing Authorities often have great difficulty in categorising them. Operators are hugely innovative in their approach and it will not be long before someone comes along with something new and exciting and we expect councils, including Westminster, will continue to struggle with that.

Documents supporting licence applications

Reading through Westminster’s document we observed lots of references to documents they would like to see supporting licensing applications. Everything from safeguarding policies to fully fledged risk assessments at the time of application are mentioned. A concern that we have is the extent to which these documents will be demanded by Responsible Authority officers and therefore become a necessity when making an application. There is nothing overtly objectionable about doing a risk assessment before making a premises licence application but we can see errors or accidental omissions in risk assessments being pounced upon by those that would see applications refused.

Whether you are an existing premises licence holder in Westminster, or have designs on opening there in the not too distant future, we strongly recommend that you read Westminster’s licensing policy proposals and respond to the consultation as you see fit. Policy consultations give operators the chance to scrutinise a council’s plans before they come in to force. We often hear views about policies voiced after they have come into effect. This is a chance to express your views now. Make sure you use it.

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Welcome to the Tier System

The Government has decided that everything has become too confusing, that people don’t know whether they are coming or going, and that things need to be made simpler so that we can all understand what we’re supposed to be doing at any given time.

Rather than impose a national lockdown like we experienced in March, or continue with specific local lockdowns, the Government has decided to create a tier system consisting of medium, high, and very high tiers together with legislation and guidance to accompany them. The tier system came into force at 00:01 on 14 October.

This article will look at what the rules are for each of the tiers and the differences between them.

Medium (Tier 1)

This is the tier that applies to most of the country and that replicates the status quo prior to the introduction of the tier system. That means:

  • The rule of 6 (e.g. not meeting in groups larger than 6 indoors or outdoors)
  • Restrictions on opening hours for hospitality businesses (e.g. 10pm closure)
  • Restrictions on operation for hospitality businesses (e.g. table service)
  • Most other premises able to stay open
  • Working from home where possible

The medium tier doesn’t introduce any significant changes day-to-day and the situation will be reviewed monthly. The same is not true of the high and very high tiers.

High (Tier 2)

This tier applies to large parts of the north of England. A full list of the areas included can be found in Schedule 2 of the relevant regulations and includes places such as Leeds, Manchester, Birmingham, Nottingham and many others.

The key differences between the medium and the high tier are:

  • A ban on mixing with other households or people outside your support bubble anywhere inside, including in private homes. Seeing other households whilst still keeping to groups of no more than 6 outdoors is still possible
  • The ban above also includes hospitality businesses so premises will need to make sure they aren’t accommodating groups that aren’t from one household/a support bubble

Areas given tier 2 status will be reviewed every 14 days with the rules reviewed every 28 days.

Very High (Tier 3)

This tier applies to the worst affected areas and includes Liverpool and other surrounding areas. It is quite likely that other areas will be added to tier 3 in the coming days/weeks.

The key differences between the very high and the high/medium tiers are:

  • pubs and bars must close. They can only remain open where they operate as if they were a restaurant – which means serving substantial meals, like a main lunchtime or evening meal. They may only serve alcohol as part of such a meal
  • advising people not to travel into or out of an area if it has been categorised as a very high alert level area. This is part of wider measures to help manage the risk of transmission. You can continue to travel into or out of very high alert level areas if you need to for work, education, to access youth services or because of caring responsibilities.

In addition to these restrictions the Government guidance also suggests they will consider:

  • restrictions preventing the sale of alcohol in hospitality or closing all hospitality (takeaway and delivery permitted)
  • closing indoor and outdoor entertainment and tourist attractions and venues
  • closing venues such as leisure centres and gyms (while ensuring provision remains available for elite athletes, youth and disabled sport and physical activity)
  • closing public buildings, such as libraries and community centres (while ensuring provision remains available for youth clubs and childcare activity and support groups)
  • closing personal care and close contact services or prohibiting the highest-risk activities
  • closing performing arts venues for the purposes of performing to audiences

In short, the types of restrictions imposed under Tier 3 are not far short of those experienced in March.

If you are a premises that is affected by the new system and would like advise on what the system means for you please contact us for support.

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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