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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.