Licensing and leisure update
Welcome to our April 2021 bulletin, in which we consider topical issues for the licensing and leisure sectors. After what has been a tumultuous year, we focus on how businesses in England can prepare for re-opening in line with the government’s road map.
From 12 April 2021, premises will be allowed to serve people outdoors (with no requirement for customers to order a substantial meal with alcoholic drinks) but this must be by way of table service. Social contact rules will continue to apply to prevent indoor mixing of different households.
So what might you need to consider in advance?
You will need to ensure that you are providing a safe place of work for your staff and that you are compliant with government guidance. In order to demonstrate this you will have to carry out a Covid-19 risk assessment and maintain 2 metres social distancing wherever possible. Where it is not possible to maintain this distancing you must manage transition risk, and finally you must reinforce your cleaning processes. The government has also published some sets of sector specific guidance, one of which covers restaurants, pubs, bars and takeaway services. You should make sure that you take the necessary measures identified in the guidance.
You will need to take key staff, such as the Designated Premises Supervisor, off furlough. Whether you can dictate the end of furlough will depend on what has been agreed with the furloughed staff, but the absence of an explicit right to bring furlough to an end and require staff to return to work probably won't be an issue in most cases because they are likely to be receiving less pay while furloughed and will generally be keen to return to work given the extended period of uncertainty. Notice to end furlough should be given in writing and the notice given should be that agreed in the furlough agreement or, if there was no agreed notice period, a reasonable period of notice. ACAS recommends that employers should talk to staff about any plans to end furlough as early as possible and encourage them to raise any concerns or problems about returning to work.
You may also wish to provide details of the measures you have taken to ensure that the workplace is safe, along with details of any temporary or permanent contractual changes you may have to make. It may also be a good idea to highlight any policy changes you wish to make in the current circumstances, such as for example preventing the taking of annual leave for a certain period after reopening.
It's worth remembering that the Coronavirus Job Retention Scheme (CJRS) remains available until the end of September so you have the scope to bring staff back gradually as business picks up. Staff can be brought back on a flexible basis for any amount of time and any shift pattern, so there is no minimum or maximum limit.
Staff working under flexible furlough arrangements will need to be paid whatever they would ordinarily be paid under their contract of employment. You will be responsible for paying the tax and NICs on those sums. You will then claim the CJRS grant for the remaining part of the employee's normal working hours when they are furloughed and not carrying out work.
Under the CJRS employees are guaranteed 80% of their salary capped at £2,500 until the end of June. In July employers will be expected to contribute 10% of a furloughed employee's wages, which will rise to 20% in August and September.
How safe is it to follow a policy of "no jab, no job"?
This is a question being asked by many employers given the speedy roll-out of the UK's vaccination programme. It may be possible for you, having carried out risk and equality impact assessments, to take the view that staff having a vaccine is the most reasonable way of mitigating the risk of Covid-19. The matter would be tested if an employee refused and challenged the decision, but until that happens we have no way of knowing whether this would be considered reasonable or not.
In our view it is open to employers to consider mandating the vaccine, perhaps particularly where employees are working in contact with the general public. However, this isn't totally without risk and there will be other issues to consider, such as any side effects or long-term effects of the vaccination, as well as potential claims that those reluctant to receive the vaccination could bring.
If you want to introduce a policy requiring staff to be vaccinated you should think through all the issues, as well as consulting with staff about the benefits of the vaccine. Even if you decide not to make having the vaccine mandatory, you can still actively encourage staff to be vaccinated, and explain the workplace benefits that vaccination will bring. Implementing paid time off to enable employees to be vaccinated will be a good way of incentivising them to do it.
If you are a tenant and your landlord has agreed to temporary Covid-19 rent concessions, will re-opening the premises (whether in whole or part) trigger full rent and service charge payments?
Check your lease carefully and/or ask your solicitor for advice.
Is a full or minor variation to your existing premises licence needed?
Remember that a minor variation cannot be used either to extend the period for which the licence has effect or vary substantially the premises to which it relates. Allow sufficient time and applications for a minor variation must be advertised in at least one place on the premises for a continuous period starting on the first working day the application was given to the licensing authority and ending on the tenth working day.
Equipment that has been idle for some time may need testing, such as a risk assessment of electric heaters.
Is a pavement licence required from the local authority for al fresco dining?
If you want to place removable furniture over a publicly adopted pavement adjacent to your premises then you will need a pavement licence from the local authority. Under government concessions due to expire on 30 September 2021 (but subject to secondary legislation extended for 12 months on 5 March 2021) there is a consultation and determination period of 10 working days.
If you are planning an outdoor event (such as a wedding or reception) on unlicensed premises then, as things currently stand, this will be possible for up to 30 people but not before 17 May 2021. However, you may need to apply to the local authority for a Temporary Event Notice (TEN) .and apart from the obvious (sale of alcohol), licensable activity includes providing entertainment such as music, dancing or indoor sporting events. A TEN is also required if the licensable activity is not included within the terms of your existing licence. You need to allow enough time to secure a TEN (applications must be made at least 10 working days beforehand) and your event must have fewer than 500 people in attendance at all times (including staff) and last no longer than 168 hours (seven days).
More Flexible Approach to Planning
On 25 March, the Secretary of State laid a Written Ministerial Statement to Parliament which emphasised local planning authorities should continue to take a positive and flexible approach to planning enforcement action to support economic recovery and support social distancing. The use of temporary structures such as marquees in order to facilitate social distancing measures has been widespread over the course of the pandemic. In general temporary structures do not need planning consent, but whether something is a temporary structure depends on a number of factors and is subjective. The Government wants local authorities to take a relaxed view in these types of case.
For the remainder of 2021 permitted development rights will allow land (as opposed to buildings or land within the curtilage of a building) to be used in a flexible way (subject to some exceptions) for up to 56 days. This extended permitted development right is likely to be used to facilitate pop up events and facilities, particularly this summer. Such events are likely to be regulated under the licensing regime rather than the planning regime.