SIX AND OUT (OR IN…)
To quote Yogi Berra, the famous baseball coach, ‘It ain’t over till it’s over’. That is certainly applying to the COVID-19 outbreak. The rapidly increasing number of new cases in early September led to a further general change to the rules. In some ways they have been simplified but not necessarily made easier. Gatherings outdoors have been brought in line with those indoors with a limit of six – the ‘rule of six’ as the Prime Minister put it. There is no longer any need to worry about households or bubbles; it is simply six people from any number of households. Groups in a pub at the same time are however not allowed to mix socially or form bigger groups. As previously, there is no specific limit to the total number of people allowed to be in pubs and restaurants because such venues are expected to be COVID secure.
These changes will, unlike the previous guidelines, have the force of law. The police will be empowered to require groups of more than six to disperse and anyone refusing to do so will be liable for a fixed penalty of £100, multiplying with subsequent offences to £3,200. These changes, which came into effect on Monday 14 September, only apply to England. Northern Ireland, Scotland and Wales all have their own rules, all different and all likely to change again.
There are exceptions to the ‘rule of six’ which include schools and workplaces. Shortly after the last issue was released, there was talk of the need to close pubs and restaurants so as to facilitate the reopening of schools. None of this came from the Government who have told trade bodies that there are no plans for any closure on a national scale but local lockdowns are always possible. It will, of course, depend on how sensibly people behave.
TEST AND TRACE
The original guidelines simply encouraged cooperation on the part of pubs and restaurants and, should they not want to give their details, the customer could choose to opt out. This is no longer the case. It is now a legal requirement for pubs and restaurants to take customers’ details for Test and Trace (T&T) purposes. The data collected is however still only required to be kept for 21 days. Some pubs will need to tighten up their practices but let us hope that this does not lead to any level of confrontation.
According to a report in the Times (as repeated in the Morning Advertiser), when a reporter queried the lack of T&T detail being taken in one of their pubs, a spokeswoman for Samuel Smith’s told them that they were not taking customers’ details because ‘it’s against GDPR data protection to ask people’s names and addresses and most people would give false names and addresses. Sam Smith’s customers are locals and most managers know the customers and word would get around if COVID was in a pub’. I’m not sure how true that might be of their central London pubs. The company has since changed its policy.
JUST IN CASE . . .
I thought that readers might want to know what should happen when a pub customer is found to have COVID. The Morning Advertiser obtained advice from various sources, including Public Health England (PHE). Customers who have a positive test should tell the Test & Trace Service (TTS) that they had visited the pub and who they were with. The publican should then work with the TTS and pass over their customer and staff details. The pub does not have to automatically close but the management should take advice from the TTS in case there are any unusual circumstances.
The definition of a contact in a pub or restaurant is ‘someone within one metre of them with whom they have had a face-to-face-conversation, had skin-to-skin physical contact, have coughed on, or been in other forms of contact within one metre for one minute or longer; or someone within two metres of them for more than 15 minutes’. If a member of staff reports symptoms then they should self-isolate for seven days from when the symptoms started. If they feel well enough after seven days and have not had a high temperature for 48 hours, they can return to work.
Against the background of additional restrictions being imposed on the Greater Manchester area in early September, pubs and restaurants in Bolton were closed again because of a high local incidence of new cases. Under these additional local rules, pubs and restaurants can continue to trade as takeaways, although they are required to close completely between 10pm and 5am.
CAMRA’s National Chairman, Nik Antona, commented, “Many pubs have struggled to re-open this summer, having invested their dwindling reserves to do so safely and securely in line with COVID-safe guidance. A second shutdown in Bolton is a devastating blow for these pubs and local people’s livelihoods. Given the significant impact a second shutdown would have on the industry, the Government must introduce a new financial support package and extend the furlough scheme for pubs that are forced to close in local lockdowns. This is the only way to avoid permanent closures and further job losses. Pub companies must also immediately cancel rent for tied pub tenants in Bolton. Tenants shouldn’t be forced to pay rent if they have no turnover. CAMRA continues to encourage people to use pubs in safe and responsible way.”
What has happened in Bolton is important because it indicates the Government’s thinking on these matters; please don’t think that it couldn’t happen in London.
MORE LAW . . .
To add some context to the above, readers will recall that I mentioned in the last edition that the Government’s guidance for the reopening of pubs relied on the Health & Safety at Work Act. Problems with this were inevitable. As difficulties arose in Leicester and, as mentioned above, in Manchester, local councils found that they did not have what they considered to be sufficient legal powers to order the prompt closure of pubs that were not complying with the guidance. The Local Government Association (LGA) asked for a temporary amendment to the Licensing Act that would enable them to temporarily close non-compliant pubs or, in extreme cases, revoke their licence. It appears that ‘push came to shove’ with the events described above, leading the Prime Minister to announce that local authorities would be given enhanced powers they had asked for, including the power to fine pubs that are not properly COVID secure up to £1,000.
New to the scene will be COVID-Secure Marshalls. These are a Government creation and were not requested by the LGA. As well as supervising general public social distancing in town and city centres, they will also be expected to give advice to pubs and restaurants on their compliance with the rules. They will not have the authority to fine venues but will be expected to report any compliance failures to the police.
Overall, the Government’s Eat Out to Help Out (EOTHO) discount meals scheme, which ended on 31 August, has been hailed as a success. The scheme gave diners 50% off the cost of meals and non-alcoholic drinks, up to a maximum of £10, on Monday to Wednesday, although Star Pubs & Bars reported an increase in trade on Thursdays to Sundays as well. The Treasury received over 130,000 claims for discounts allowed, costing £522 million. However, by enabling a number of pub companies to have staff return from furlough, they saved around £150 million and received £65 million more in VAT than was expected. The Treasury was asked to continue the scheme but refused, saying that it had only been popular because it was time limited. Subsequently, a number of pub chains, including Star Pubs and Bars, Hall & Woodhouse and Wetherspoon’s, have decided to continue with the initiative, although some with different terms and conditions.
The scheme was, of course, no help to wet led pubs and no other initiatives were put in place to help them. The British Beer & Pub Association (BBPA) has called on the Government to help wet led pubs by continuing the reduction of VAT to 5% beyond its current end date of 12 January and to extend it to alcohol sales.
FURTHER HELP FOR PUBS
A number of trade bodies and trade unions have asked the Government to continue the furlough scheme (correctly the Coronavirus Job Retention Scheme). Both the Prime Minister and the Chancellor of the Exchequer have made it clear that this will not happen because it goes against their policy of getting people back to work.
In a poll of 173 companies in the leisure industry conducted for the Morning Advertiser, about half of them could not rule out redundancies when the scheme ends at the end of October.
Companies, presumably including pubs, which have to close because of local lockdowns will be eligible for what the Government has called ‘lifeline grants’, worth between £1,000 and £1,500 and payable every three weeks. As is the usual practice, the exact amount will be determined by rateable value.
Rents, of course, remain a serious problem for many pub tenants, especially if they have to close a second time because of a local lockdown. CAMRA’s view is that it is only right that pub companies cancel a pub’s rent for that period. We are encouraging our branches and members to write to pub companies operating in their area, asking them to cancel rent for tenants.
Stop press: The legal action taken by the Financial Conduct Authority against some insurance companies who refused to pay out on business interruption polies has been partially successful. I will cover this in more detail in the next edition.
REGULATION OF PUBS INCREASED
On 20 September, the Prime Minister warned that a second wave of the COVID-19 virus was on the way and so further changes would be made to the preventative measures§. News of these changes began circulating late the next day and were confirmed when he made a statement to Parliament on 22 September. As from Thursday 24 September, all pubs, bars and restaurants in England must close at 10pm. That means that the pub should be cleared and closed; no drinking up time. Readers will recall that table service was included in the original Government guidance, although it was often found to be impractical. It now becomes mandatory. Face coverings now need to be worn in pubs, except when sitting at your table. Staff must now wear face coverings as well. The ‘rule of six’ remains as before, inside and out. Groups should still be one metre apart, with no mingling. The Prime Minister said that these measures are expected to be in force for at least the next six months. He also promised more police on the streets to enforce these measures. The fines for breaching the regulations relating to gatherings of more than six and wearing face coverings have been doubled to £200.00. Other measures were announced but they are covered in more detail in the national press.
This is a kick in teeth for pub companies and individual publicans who have gone to a lot of trouble and expense to diligently follow the Government’s instructions to make their premises COVID secure. There have been a few rogues, there always will be, but the authorities (somewhat belatedly) now have effective powers to deal with them. The Government has also changed its advice on working from home and that will not help pubs and catering outlets either.
It is hard to see what this will achieve. I suspect that, more than anything, it was a political gesture to appease both those who were already in local lockdown and, as mentioned in the introduction (page 3), aggrieved non-pub goers. The influence of the anti-alcohol lobby should not be discounted. Given that most pubs are on reduced takings, employing more staff will be difficult so I wonder if making table service compulsory is designed to slow down the rate of consumption. If so, it shows that the people making decisions about pubs are not pub goers. Incidentally, don’t think that you can go for a takeaway at 10pm. They have to close then as well.
Tom Stainer, CAMRA’s Chief Executive, commented, “Pub-goers and publicans alike want to stop the spread of COVID-19, but this curfew is an arbitrary restriction that unfairly targets the hospitality sector and will have a devastating impact on pubs, jobs and local communities. For the third time in a week, CAMRA is calling for the Government to publish the evidence that pubs or restaurants are the source of more transmissions than other sectors across the country; if they aren’t, then why are they being singled out for nationwide restrictions? This is punishing the thousands of responsible publicans across England who are providing a COVID-secure environment for their communities, while already operating at greatly reduced levels in their efforts to keep their customers safe. Make no mistake about this; without a proper financial support package, communities will lose their local forever, people will lose their jobs, and publicans their livelihoods. This can only be avoided if the Government acts now to reintroduce the furlough scheme for hospitality venues, extend the business rates holiday for another year, take steps to resolve the rent crisis facing the sector and drastically cut draught beer duty.”
Kate Nicholls, the chief executive of UKHospitality, echoed Mr Stainer’s thoughts when she told the Morning Advertiser, “It is hard to understand how these measures are the solution to fighting the disease when Government data shows that just 5% of infections out of the home are related to hospitality. Where such restrictions have been put in place locally they have not cut infection rates, merely damaged business and cost jobs. A new support package is now essential. We need to see an early signal that the VAT cut will be extended through to the end of 2021; that
the business rates holiday will continue next year; and an enhanced employment support package specifically for hospitality.”
It could have been worse. Many Government advisers were lobbying for a complete closure. Similar measures had already been introduced in the north east of England. When asked why he wasn’t ordering a complete closure of licenced premises, Newcastle’s Director of Public Health, Eugene Milne, encouragingly replied that, “We are trying to recognise there are a lot of businesses, including businesses in the hospitality sector, who have worked really hard to implement the guidance and make sure that social distancing and appropriate behaviours are observed in their premises and while they are operating.”
TEST AND TRACE
The fine for hospitality venues failing to take customer details has been increased to a maximum of £10,000. Just to recap, the information that they should be taking is as follows:
• The customer’s name;
• A contact phone number;
• Date of visit;
• Time of arrival and, where possible, time of departure.
If there is a group, only the ‘lead member’ needs to give their details. The pub should record the number of people in the group, which, of course, cannot exceed six.
Venues should also have a record of the names and contact numbers of their staff, plus details of shifts worked. As before, all contact information should be held securely for 21 days and then destroyed so as to comply with the data protection regulations. Misuse (for marketing purposes, for example) is an offence.
A new development, scheduled to be introduced on 24 September, is the introduction of QR codes. Pubs will be obliged to have these on display and customers will be expected to use them to register on the NHS contact tracing ‘app’. There will be a Government website on which the codes can be set up and downloaded.
The Health and Social Care Secretary, Matt Hancock, was quoted in the Morning Advertiser, “Businesses have already stepped up to ensure they are supporting the NHS Test and Trace effort, and it is essential contact logs and displaying NHS QR codes are mandatory so there is consistency across the country and the public can seamlessly provide their details. Venues should record and maintain contact details logs for customers, visitors and staff, and they should also download an official NHS QR code poster for their premises ahead of the launch of the NHS Covid-19 app.”
BUSINESS GRANTS CLAWED BACK
The Government closed its three COVID emergency grants funds, including the Retail, Hospitality and Leisure Business Grants Fund, on 28 August. According to the Local Government Association (LGA), more than £1.37 billion of unused funds were returned to the Government. The LGA has asked that these funds remain available, the case for which will have been strengthened by the recent local lockdowns. The British Beer & Pub Association (BBPA) have supported this request and would also like to see something done to help those pubs, thought to number about 10,000, with a rateable value of over £51,000 and who were consequently excluded from several grants schemes. The BBPA’s chief executive, Emma McClarkin, said, “Our sector may have reopened but it is far from out of the woods yet. Our pubs still need all the support they can get and many are still waiting on it so withdrawing £1 billion in possible funding is short-sighted to say the least.” According the LGA, councils paid out around £11 billion in various grants to some 880,000 businesses, although the payment process had not yet been completed for some claims from the Discretionary Grants Fund, which was only introduced in May.
PROTECTION AGAINST EVICTION CONTINUED
The Ministry of Housing, Communities & Local Government has extended the moratorium on the use of the Commercial Rents Arrears Recovery procedure until the end of 2020. This is good as far as it goes but it is essentially ‘kicking the can down the road’. The rent is still payable and landlords will still want their money. UKHospitality’s Kate Nicholls said that it should be extended to 31 March and include County Court judgements, adding, “It needs to be followed by further support which, crucially, must include working with landlords and tenants to find a mutually equitable solution. The debt is not going to go away and many businesses have no chance of paying it.” It is estimated that unpaid commercial rent currently amounts to some £760 million, with another quarter’s rent falling due on the Michaelmas quarter day (29 September).
A number of trade bodies have asked for the business rates holiday to continue for 2021/2022. They have been joined by the Mayor of London, Sadiq Khan, who specifies that it should be for retail, hospitality and leisure businesses. He said, “Businesses across London continue to struggle from the impact of COVID-19. If the business rates holiday comes to an end, I worry employers will have no choice but to make more people unemployed. Many large retail, leisure and hospitality businesses, accounting for thousands of Londoners’ jobs, are taking important decisions for the next financial year right now, so certainty over the business rates holiday is needed urgently.” The BBPA estimates that the rates bill for pubs is £25,000 per annum. This is, obviously, not just a London problem. UKHospitality estimate that, without specific support, around 900,000 jobs will be lost in the hospitality sector around the country. Speaking to the Morning Advertiser, Kate Nicholls said, “The hospitality sector has a proven track record in delivering jobs growth but we need Government to be flexible in its approach and to provide the necessary support over the bleak winter months in order for our sector to continue to play a role in the economic recovery.”
The ‘rates holiday’ is estimated to have cost the Government around £770 million. For those not familiar with the workings of the system, local authorities only collect business rates. After deducting their permitted collection costs, the money is paid over to the Government who then return what they think councils need by way of grants.