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Health and Safety Executive publish figures of Covid-19 reporting

The Health and Safety Executive has released statistics relating to the RIDDOR reports made as a result of occupational exposure to Covid-19. The results showed that 7,971 disease notifications of COVID-19 in workers were reported to the HSE and Local Authorities (LAs) over the period 10th April – 11th July 2020. This figure includes 119 death notifications.

The total suspected occupational COVID-19 reports made by employers to the enforcing authorities are contained within a table that can be viewed on the HSE website with the following link: https://www.hse.gov.uk/statistics/coronavirus/index.htm. The table shows the peak of reports week commencing 26 April 2020 with 1,183 reports and the lowest level showing 121 reports week commencing 05 July 2020.

A RIDDOR report applies in respect of COVID-19 where there has been an occupational exposure, i.e. as a result of a person’s work. A report should be made under RIDDOR when one of the following circumstances applies:

  • An accident or incident at work has, or could have, led to the release or escape of coronavirus (COVID-19). This must be reported as a dangerous occurrence.
  • A person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease.
  • A worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.

The majority of reports received are for workers in the Health and Social Work sector, around 75% but this could be higher due to the way that sectors sometimes are misclassified by those making the RIDDOR reports. The details come in light of announcements from the HSE that they will be focusing on COVID compliance spot checks in Bradford and  the surrounding Yorkshire area, following a number of local outbreaks identified in the region.

The publishing of the statistics and announcement of enforcement in Yorkshire follows criticism by the MP for Barnsley East of the HSE’s response to Covid, in particular referring to the response as ‘apalling’ after an outbreak in a Barnsley food factory where three workers have died.

It is important that you are regularly updating yourselves with the HSE guidance and ensure that regular checks are completed to comfort yourself that the operations conducted by your organisation is COVID ready. It is easy to become overwhelmed with all of the guidance available, specifically where you may use cross sector operations which may cross over some of the guidance available. What’s important is that any organisation’s documentation is unique to them and should apply both in writing and practically on a day to day basis. Communication to all that are involved is absolutely essential to ensure that not only the business leaders are aware of its obligations and safeguards, but also all the workers are aware of key documentation and what is in place to protect them which in turn satisfies and discharges the duty of an organisation.

It will be interesting to see some of the enforcement to come from the COVID inspections and if you are approached by the HSE you know where to find us.

If you have any questions about this topic or any other regulatory topic or issue, then please contact the regulatory team at Woods Whur and we would be happy to discuss the law as it stands alongside current guidelines. 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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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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Local Lockdowns – What Does This Mean for You?

The powers available to implement a local lockdown are contained under the Coronavirus Act 2020 and also under the Public Health Act 1984 in which the government can make new health protection regulations to initiate local lockdowns.

We have seen that Leicester has been subject to a “local lockdown” due to the disproportionate rise in Coronavirus cases in that area. The “local lockdown” restricts movement of people, in particular the restriction of events or gatherings in accordance with Schedule 22 of the Coronavirus Act 2020. Leicester has also seen the delay of reopening of their pubs and non-essential retail have been forced to close again as a result of the “local lockdown”.

The above poses practical questions as to the effect of the “local lockdown” has on organisations and, in particular, how your organisation is affected even if you operate beyond the lockdown area. You may need to consider how your operations could be affected by reliance on  suppliers, employees, customers located in these areas or are there areas which if subject to lockdown could expose your organisation to difficulty in operating there and perhaps nationally.

Enforcement available within the “local lockdown” area is the same as that in which we all faced in March, April and May which was in place across the whole country. Insurance considerations are also important and it would be a good time to review any insurance policies you have that may include cover for such disruption or contingencies.

It is likely that the government will seek to implement further “local lockdown” areas depending on where outbreaks occur in the country and we will be keeping a watchful eye on how this will be enforced and the practical issues that will arise as a result of “local lockdowns”.

It is important that you consider within any contingency planning or risk assessments how a “local lockdown” in the current climate may affect your operations and certainly any employees that may not be able to attend in person where usually the easing of the lockdown restrictions would allow this to happen.

If you have any questions or concerns about how this will affect your operations, then please contact us to discuss your options. You can reach the regulatory team by contacting James or Sarah on james@woodswhur.co.uk or sfrow@woodswhur.co.uk or alternatively by calling 0113 234 3055.

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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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Local Interpretation Exposes Flaws in Guidance to Operators Before Reopening on Saturday

Yesterday I was invited to attend a meeting at Elland Road Police Station in Leeds with all of the key stakeholders from Leeds City Council and Leeds Police Licensing Team.

It was an exceptionally helpful and informative meeting. Local positive engagement with operators is going to be key as we move into the opening of licensed premises after such a significant period of closure. One of the key areas for debate was the status of the Guidance issued by the government – Keeping workers and customers safe during COVID-19 in restaurants, pubs, bars and take away services.

Whether you agree with it or not, the government has taken a strategic approach to the opening of licensed premises which centres around self-regulation:-

  • On 15 June 2020, the table which lists which premises are allowed to be open to the public was amended to include “restaurants and public houses, bars or other food and drink establishments including within hotels and members clubs such as dining rooms”
  • Nightclubs, casinos and bowling alleys were prohibited from reopening a this stage

This creates a mandatory position – which premises  MUST stay closed and those which are allowed to reopen from July 4th.

However, the government have chosen to place the onus on operators to risk assess their premises and invited them to follow the Guidance issued on 23 June 2020.

At page 4 of the guidance, the government states:

  • “Each business will need to translate this into the specific actions it needs to take, depending on the nature of their business, including the size and type of business, how it is organised, operated, managed and regulated. They will also need to monitor these measures to make sure that they continue to protect customers and workers”.
  • “This guidance does not supersede any legal obligations relating to health and safety entertainment licensing and regulations….It contains non-statutory guidance to take into account when complying with these existing obligation.”

What we agreed at our meeting in Leeds yesterday is that the risk assessments which operators need to take have to be dynamic. This should not be a desktop box filling exercise. It should be bespoke to the premises. It should take into account what the risks are in the style of operation of the premises and set out what measures are being taken to manage the risk. As the objective says “to reduce risk to the lowest reasonable practicable level by taking preventative measures, in order of priority.”

The document sets out suggestions of issues that should be looked at in these risk assessments.

It is imperative that these risk assessments are shared with staff at premises to make sure that there is a 100% buy in to the changes in operational style.

Social distancing and capacity are clear issues in reopening of premises and Leeds Police and Licensing said that they would be sensible with looking at operators obligations. For example some licences have a condition to provide SIA on their premises. If the capacity is vastly reduced, then the same number of door supervisors may not be needed. The Police and Licensing authority said that they would look at this on a case by case basis and would expect the operator to be able to risk asses the number of door supervisors that would be required and if it is less than the minimum figure placed on a condition on the licence, they would not look to enforcing that condition.

One of the areas that came up for debate was the showing of live sport, and particularly football on TV screens in licensed premises. This is a topical issue around the country and different areas are interpreting the guidance differently.

A key section of the guidance is 4.5 which deals with entertainment. It is my view that this is a guidance document. It doesn’t constitute a mandatory requirement in relation to operators. However, if operators decide to risk assess their premises and step away from the guidance, they run the risk if things go wrong. If for example entertainment is offered at the premises which it is suggested shouldn’t be offered, then there is a risk of a review of your premises licence under the health and safety licensing objective should issues result.

It is important to look at the wording of Section 4.5 in the document:-

  • For many restaurants, pubs and bars, providing entertainment such as recorded music, live sports broadcasts, quizzes, live musicians or comedians are an important part of their business.
  • At this time, venues should not permit live performances, including drama, comedy and music, to take place in front of a live audience. This is important to mitigate the risks of aerosol transmission – from either the performer(s) or their audience. There will be further guidance setting out how performing arts activity can be managed safely in other settings, for instance rehearsing or broadcast without an audience.
  • All venues should ensure that steps are taken to avoid people needing to unduly raise their voices to each other. This includes, but is not limited to, refraining from playing music or broadcasts that may encourage shouting, including if played at a volume that makes normal conversation difficult. This is because of the potential for increased risk of transmission, particularly form aerosol transmission. We will develop further guidance, based on scientific evidence, to enable these activities as soon as possible. You should take similar steps to prevent other close contact activities such as communal dancing.
  • Preventing entertainment, such as broadcasts, that is likely to encourage audience behaviours increasing transmission risks. For example, loud background music, communal dancing, group singing or chanting.

So the big question at yesterday’s meeting was what about showing live football.

I do not believe that the guidance suggests that you cannot do this. What it does suggest is that you need to risk assess how you will change the way that you deliver the live football broadcast – for example, reducing the volume or having no volume at all. In addition, a key part of your risk assessment will be how you will manage customers should they become excitable and potentially breach social distancing. This is a real conundrum for many premises. We saw how people behaved when Liverpool won the title and there is the possibility of Leeds United (hopefully as a fan of LUFC and their lawyer) gaining promotion back to the premiership. This would clearly lead to significant management issues for premises who wish to show Leeds matches towards the end of the season. It is critical, in the way that I am advising clients, that if they wish to show live football they can, but they must have a risk assessment in place as to how they are going to manage people on their premises.

Risk assessments, as well as being fed into all staff, need to be debriefed at the end of a trading session – including the door staff. The risk assessment needs to be updated to take into account the lessons that will be learnt from trading under these new sets of circumstances.

The environmental health representative at the meeting yesterday could not stress more highly how important it is for the hand washing regime is to be taken seriously. This must not be just a token effort. Proper hand washing with soap and water is still the best form of cleanliness to stop the transmission of the disease.

Another area that we discussed was travelling to and from work and this is mentioned in the guidance also. All parties were very keen to see that staff do not travel in groups to and from their shift. It is also sensible to stagger staff levels accordingly.

It is vitally important that we all work to get this right and support the leisure industry to reopen responsibly and safely. It was fantastic to be part of a collegiate approach yesterday in Leeds. Everyone looking to work together to support good responsible operators. Hopefully a successful and peaceful reopening on Saturday.

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COVID-19 Re-Opening Strategy

On 20th March 2020, by order of the government, licensed premises in the UK were ordered to close as part of the government lockdown and those premises have remain closed. The leisure sector has as a result been one of the most hardest hit and there are a number of reports emerging as to the potential long term consequence on the industry, its operators and employees. I am already seeing reports of notices of intent to appoint administrators. The Prime Minister’s speech on the 10th May 2020 which was followed by the issuing of a 60 page document set out the government’s proposals for relaxing lockdown but it is important to note that any relaxation is dependant on 5 factors;

  • NHS Capacity
  • The ‘R’ number remaining below 1
  • The number of deaths reducing
  • Sufficient PPE
  • No second spike

The opening of clubs, bars and gambling premises will only be considered as part of Step 3 of the government’s relaxation of the lockdown position and at the moment there is very little government information about Step 3. However it may be that some of the guidance for shops which are currently open in Step 1, and those proposed to be opening in Step 2, is of assistance.

The Current Position for the Leisure and Entertainment Industry

Nightclubs, arcades, bowling alleys, bingo halls, casinos, betting shops, cinemas, theatres, concert halls and so on are all currently closed. The opening of the above will be considered as part of Step 3 through various government taskforces

Similarly, restaurants and public houses, wine bars or other food and drink establishments including within hotels and members’ clubs are also currently closed.

The exception for this is for food delivery and takeaway services which can remain operational (this can be a new activity supported by the new permitted development rights in England). This covers the provision of hot or cold food that has been prepared for consumers for collection or delivery to be consumed, reheated or cooked by consumers off the premises.

Another exception is the provision of room service in hotels and accommodation.

The reopening of restaurants, public houses and other food and drink establishments will also be considered as part of Step 3 using the various taskforces.

Hotels are currently open for the following;

  • If a person’s primary residence is unavailable, or a person primarily lives in a hotel, they can continue to live in a hotel
  • Critical workers/non UK residents, if their primary residence is unavailable they can live in a hotel where required
  • A person unable to return to their main residence, or a non-UK resident unable to travel, may stay in a hotel
  • A person unable to move into a new home (due to current restrictions) can stay at a hotel
  • If a hotel is providing rooms to support homeless or vulnerable people who cannot safely remain at home they may continue to do to so (with arrangements through local authorities and other public bodies)
  • A person who is attending a funeral, and it would be impractical to return home, can stay in a hotel
  • Hotels are allowed to host blood donation sessions.

Aside from these exceptions, hotels remain closed for the time being. Their re-opening will be considered as part of step 3.

Step 3- The opening of ‘some’ of the remaining businesses

The aim of Step 3 is to open businesses including hospitality (such as food service providers, pubs and accommodation) and leisure facilities (like cinemas) which were required to close. This is extremely dependant on how steps 1 and 2 go, and the 5 factors referred to above, all of which is determining the government’s strategy.

Pubs and restaurants are currently being considered by the Department for Business, Energy and Industrial Strategy taskforce. Recreation and leisure, including tourism, culture and heritage, libraries, entertainment and sport are being considered by the Department for Culture, Media and Sport taskforce.

The Government’s current planning assumption is that this step will begin be no earlier than 4th July 2020.

If premises were to re-open they would have to meet the COVID-19 Secure guidelines, including social distancing which will presumably mean that some venues may still not be able to open, for example if they are extremely crowded by nature. The government has already said that it is likely outdoor venues will open earlier than indoor public spaces and leisure facilities, due to nature of the spread of the virus and the core purpose of much of the leisure industry being social interaction.

I imagine more will be learnt about what is possible and how the reopening of the leisure industry will work when step 2 begins, and non-essential retail opens. It is likely that pubs, cinemas and such venues will have to consider deploying similar social distancing tactics such as limiting numbers and allowing pre booked seats only. This will create a dilemma for many operators who have commented that the cost of re-opening but with strict controls on numbers etc will not be financially viable. Many may choose to remain closed.

For reference, these are some steps currently in place for open retail venues (like supermarkets) and are the sort of restrictions it is likely we will see continued when non-essential retail opens:

  • Defining the number of customers that can reasonably follow 2m social distancing within the store and any outdoor selling areas. Take into account total floor space as well as likely pinch points and busy areas.
  •  Limiting the number of customers in the store, overall and in any particular congestion areas, for example doorways between outside and inside spaces.
  • Suspending or reducing customer services that cannot be undertaken without contravening social distancing guidelines. This may include re-thinking how assistance is provided, for example, using fixed pairs of colleagues to lift heavy objects rather than a single colleague lifting with a customer.
  • Encouraging customers to shop alone where possible, unless they need specific assistance
  • Reminding customers who are accompanied by children that they are responsible for supervising them at all times and should follow social distancing guidelines.
  • Looking at how people walk through the shop and how you could adjust this to reduce congestion and contact between customers, for example, queue management or one-way flow, where possible. 
  • Ensuring any changes to entries, exit and queue management take into account reasonable adjustments for those who need them, including disabled shoppers.
  • Using outside premises for queuing where available and safe, for example some car parks.
  • Working with your local authority or landlord to take into account the impact of your processes on public spaces such as high streets and public car parks.
  • Having clearly designated positions from which colleagues can provide advice or assistance to customers whilst maintaining social distance.

 Can our licensed premises operate in the above circumstances? Will operators want to do so when it may not be financially viable?

It seems to us however that based  on the current information from the government, it is likely that only establishments where social distancing is possible will open in step 3, which will happen at the earliest 4th July and I am afraid that I still think that 4th July is optimistic and that late summer/the autumn is more likely. Perhaps some restaurants and cinemas will open at a limited capacity (for example with specific seats reserved), but the opening of venues like nightclubs, where crowding is prolific, is bound be pushed back further due to the struggles of maintaining social distancing. There may be a push to reopen venues with outdoor spaces, for example pub gardens, first or perhaps even earlier as it has been announced that outdoor areas are safer than indoor spaces.

I will continue to update everyone on the position as further information is released.

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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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Changes to Large Society Lottery Financial Limits – 29 July 2020

On 16 July 2019, the Government published a response to its consultation on whether to increase the amount of money that society lotteries can raise for good causes. This was welcome news to the society lottery sector, as some operators were considering applying for a second operating licence, in accordance with the regulations, to increase a potential fundraising ability by way of a lottery product.

Despite the response to the consultation, there was little action  by the Government immediately to allow this to be confirmed in law by way of a Statutory Instrument. This is largely down to Government time being spent mainly on Brexit and then, more recently, the General Election in December 2019.

On 19 December 2019, in anticipation of the changes to the law regarding the financial limits, the Gambling commission opened a consultation into the changes to the financial limits and also social responsibility changes. This consultation was titled ‘society lottery reform’. The consultation closed on 12 March 2020 and the response was published on 30 April 2020.

The response from the consultation confirmed that the Gambling Commission will amend the Licence Conditions and Codes of Practice (LCCP) to come into effect from 29 July 2020.

The amendments to the LCCP include amendments to licence conditions:

  • 11.1.1.2;
  • 11.2.1.2;
  • 11.1.1.5;
  • 11.1.1.6; and
  • Addition of social responsibility code 4.3.3.

These changes stipulate that a lottery promoted in reliance on the licence may not exceed £5 million and the aggregate of the proceeds of lotteries promoted wholly or partly in a calendar year may not exceed £50 million. These changes will come into effect immediately from 29 July 2020, therefore there is a further licence condition setting out the financial limits applicable for 2020 only. This licence condition reads:

2b –  In 2020, the aggregate of the proceeds of lotteries promoted wholly or partly in a calendar year may not exceed £31,311,475”.

This will be welcome news to society lotteries that have been edging closer to the previous limit of £10 million aggregate proceeds in one calendar year and considering its long term lottery strategy. The changes to the financial limits mean an increase of £40 million in a calendar year for aggregate proceeds.

In addition to the “main news” relating to the financial limit increase, the consultation resulted in an addition to social responsibility code 4.3.3.  This social responsibility code states:

1. Licensees must ensure that clear, transparent and easily accessible information is made available to consumers to enable them to make an informed choice prior to participating in a lottery.  This must include, but is not restricted to details of how proceeds are used and the likelihood of winning a prize and how prizes are allocated. 

2. Licensees must take into account the Commission’s guidance on information to lottery players”.

 The Gambling Commission have published a guidance note dated April 2020 that goes into a little more detail regarding how to be transparent and easily accessible for the purposes of meeting this social responsibility code.  It is likely that this guidance will raise further questions to ensure compliance, but it appears to promote transparency, similar to what the Charity Commission requires for registered charities.

Both of the changes mentioned above to the LCCP will be in effect from 29 July 2020 which alongside the ban on credit cards that came into  effect from 14 April 2020, shows that the Gambling Commission are making big changes this year. This is somewhat overshadowed by covid-19 and what operators have had to deal with as a result of this disruption. However, it carries on the line of stricter regulation by the Gambling Commission and an increased focus on protection against gambling harms.

If you would like to discuss the change to the LCCP and how this may affect your operations, then please do not hesitate to contact Sarah Frow (sfrow@woodswhur.co.uk) or Andy Woods (andrew@woodswhur.co.uk), in the lottery and gaming team.

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Closed Premises must take care to maintain the Premises Licence.

As a country we find ourselves in completely uncharted waters. Never has the leisure industry experienced disruption such as that currently caused by COVID-19 and the steps taken by the government to stop the spread of infection.

With huge challenges to cash flow and businesses fighting to stay alive we think it is vitally important for clients to understand what happens to a Premises Licence should the worst happen and insolvency becomes a real possibility. We hope insolvency doesn’t become a reality, but if it does there are things you can do to protect your Premises Licences.

The starting point, from a licensing perspective in terms of insolvency, is section 27 of the Licensing Act 2003, which provides that a Premises Licence lapses if the holder of the licence:

  • dies;
  • becomes a person who lacks capacity within the meaning of the Mental Capacity Act 2005;
  • becomes insolvent;
  • is dissolved;
  • if the premises is a club, ceases to be a recognised club; or
  • ceases to be entitled to work in the UK.

Section 27 goes on to say that a person becomes insolvent on:

  • the approval of a voluntary arrangement; or
  • being made bankrupt; or
  • having his estate sequestered; or
  • entering into a trust deed with his creditors.

Section 27 also sets out the position in respect of companies. Companies become insolvent on:

  • the approval of a voluntary arrangement; or
  • the appointment of an administrator; or
  • the appointment of an administrative receiver; or
  • going into liquidation.

The effect of a Premises Licence lapsing is that there is no Premises Licence to speak of and so any Licensable Activities (sale of alcohol, late night refreshment, and regulated entertainment) cannot be provided on or from the Premises that the Premises Licence pertains to.

If one of the triggers for the lapse of a Premises Licence has occurred or is likely to occur it is important to take action as quickly as possible. This is because of the provisions of Section 50 of the Licensing Act 2003, which can, if not properly actioned, lead to the loss of a Premises Licence for good.

Section 50 applies where a Premises Licence has lapsed because one of the events in section 27 has taken place, or where a Premises Licence has been surrendered in accordance with section 28 of the Licensing Act 2003

The basic position is that you have 28 days from the day the Premises Licence lapses to transfer the Premises Licence and “reinstate” it.

Section 50 provides that anyone who could apply for a Premises Licence under section 16 of the Licensing Act 2003 can apply to transfer of the “lapsed” Premises Licence provided:

  • the application is made no later than 28 days after the day the Premises Licence lapsed; and
  • the request to transfer the Premises Licence is requested with immediate effect.

Those who could apply for a Premises Licence, and who can therefore apply for a transfer include:

  • an individual or individuals jointly
  • a company
  • a partnership
  • an unincorporated association
  • a recognised club
  • a charity
  • the proprietor of an educational establishment
  • a health service body
  • a person registered under Part 2 of the Care Standards Act 2000
  • a person registered under Chapter 2 Part 1 of the Health & Social Care Act 2008 in respect of an independent hospital in England
  • the chief officer of a police force in England

who is carrying on, or proposing to carry on, a business which involves the use of the Premises for Licensable Activities, or who is making an application pursuant to a statutory function.

Provided a transfer application is made in accordance with the provisions of section 42 of the Licensing Act 2003 (the correct form used/fee paid etc.), section 50 goes on to say that the “lapsed” Premises licence is reinstated from the time the application is received by the relevant Licensing Authority.

This means that from the time the application is with the council, Licensable Activities can be provided on or from the premises to which the Premises Licence pertains.

It is important to note that if the application to transfer the Premises is rejected or is withdrawn then the Premises Licence will lapse once more.

Finally, it is hugely important to understand that you only get one go at transferring the Premises Licence to reinstate it. A sting in the tail of Section 50 means that only one transfer application can be made to reinstate the licence and if the application fails or is withdrawn, the Premises Licence is gone for good.

Our experience is that financial turmoil can understandably lead to Premises Licences being overlooked. Our view is that it is important to consider the prospective impact of insolvency on Premises Licences because they are a valuable asset. This particularly applies to Premises Licences with generous hours or few conditions, or those within highly sought after Cumulative Impact Areas.

Our top tips for ensuring that your Premises Licences don’t fall victim to lapse and loss are:

  1. Look at who holds your Premises Licences. Is it an individual, company or some other entity?
  2. Assess the likelihood of that entity becoming insolvent. Use a scale of 1 to 10 (1 being extremely likely and 10 being not likely at all) if that helps.
  3. If it is likely, or there is a chance that the entity will become insolvent, start taking steps to protect your Premises Licences immediately. Don’t wait for insolvency, get ahead of the curve.
  4. Identify a “safe pair of hands” – a person, company or other entity that can become Premises Licence Holder. You really have next to unlimited possibilities in that regard
  5. Draft (or ask us to draft) Consent to Transfer Forms giving permission to transfer the Premises Licences from A to B in readiness for potential applications – there is no harm in being prepared
  6. If the worst has happened and one of the trigger events in section 27 has occurred. Don’t panic. You have 28 days to transfer the Premises Licence to reinstate it
  7. When making a transfer after an insolvency it is not necessary to submit a Consent to Transfer Form however, be aware that Licensing Authority’s may ask to see some evidence of the insolvency in order to process the transfer

At Woods Whur we are here for you through the good times and the bad. If you are concerned about this or any other issues arising out of the current COVID-19 crisis, please do give us a call and we will do what we can to help and advise you.

Posted on

COVID-19 – Guidance for businesses and the inevitable disruption to come

What’s happened?

The Government have put in place emergency measures as a result of the coronavirus outbreak. Almost every business is affected as all individuals have been advised to work from home unless it is absolutely necessary and essential that they leave their home.

What does this mean?

As a result of this, businesses face unprecedented challenges to continue to operate and ensure employee safety whilst remaining the least disruption to ensure commercial consistency. Government advice appears to be updated and rapidly moving and it is important that businesses check this on a daily basis.

There is currently an emergency legislative bill going through the House of Commons that we expect to receive Royal Assent immediately. This, amongst other emergency measures, sets out amendments to the Statutory Sick Pay (SSP) regime and protection for commercial tenants as follows:

  • SSP will be paid from day 1 rather than day 4. This will apply retrospectively from 13 March 2020;
  • SSP will be fully reimbursed by the Government to the employer (that employs fewer than 250 employees) for up to two weeks to ensure that individuals are encouraged to stay at home whilst they experience symptoms;
  • Commercial tenants who cannot pay their rent because of coronavirus COVID-19 will be protected from eviction. The Government have specifically confirmed this is not a rental holiday and tenants are still liable for rent.

In addition to the bill, there are a number of schemes that have been set up the Government as a result of the restrictions placed on individuals and businesses because of the coronavirus outbreak. To summarise, these are as follows:

  • Protection of income for employees under the ‘job retention scheme’. HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. This is currently being set up by HMRC and we continue to review any news on this in the near future;
  • Schemes regarding grants and loans for businesses;
  • VAT and income tax deferral for all businesses;
  • Business rates cut for businesses in the retail, hospitality and leisure businesses or small business rate relief/tapered relief businesses.

The full support for businesses guidance is available on the following Government web page: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses#support-for-businesses-through-the-coronavirus-job-retention-scheme

What’s next?

The Government are providing daily updates and also publish emails to any changes to advice online at the gov.uk/coronavirus webpage. Please keep checking this page for any changes to advice for employers and, if you are unsure about something, contact Woods Whur for further assistance. These are unprecedented times and the details in the guidance provided by the Government is changing daily to ensure clarification and avoid confusion.

In the meantime, businesses may wish to review their insurance cover terms and conditions to ascertain whether this disruption is covered under its relevant commercial insurance.

FAQ’s

  • What happens if everyone is working from home and we have to complete our lottery draw on-site?

The lottery must still be operated and run in a fair and open way, in accordance with the licensing conditions and codes of practice. The current restrictions do not waive operators obligations and duties of being a responsible operator in accordance with a licence provided by the Gambling Commission. There has been no announcement as to relaxation of this and therefore if the draw cannot be completed with the relevant people there and in accordance with the games relevant terms and conditions then the draw must be suspended. Communication of this to players and payment must be managed accordingly.

  • What if someone is displaying signs of illness and continues to come into the workplace, can we send them home?

Yes. The Health and Safety at Work Act 1974 imposes a duty on employers to take reasonable steps to protect employees health and safety. There is guidance issued by the Government specifically for employers and employees and employers should be asking employees that are displaying symptoms to read that guidance as it may affect others in the household (i.e. if someone else within the house is experiencing symptoms then the household should remain in self-isolation for 2 weeks). Please note the Government advises that no employees should be at work if they are able to work from home, without symptoms.

  • How will this affect the Gambling Commission and contact with them?

The Gambling Commission have published a press release and confirm they are now working remotely. The Account manager details you have on your e-services platform will still be the same and, if you need to make contact, you should do so by email or leaving a message on the telephone, which has been in place before the restrictions were put in place.