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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 I saw one of my clients posting this week as they were disposing of beer stocks going out of date in this lockdown.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@www.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@www.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

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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@www.woodswhur.co.uk or sfrow@www.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@www.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@www.woodswhur.co.uk or sfrow@www.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@www.woodswhur.co.uk or sfrow@www.woodswhur.co.uk or call us on 0113 234 3055.