Guidance published on same day as it becomes mandatory with fines for non-compliance

nicola sturgeon

The Scottish Government has just published its updated guidance for the hospitality industry which comes into effect today 14th August. (See below) The guidance includes a new law which makes it compulsory for hospitality owners to take contact details of all visitors to their premises. This includes customers, staff, and visitors such as delivery drivers or cleaners. Failure to comply is punishable by a Fixed Penalty Notice under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. A continuing failure could be enforced by repeated fines of up to £960.

The guidance was published just after midday and followed the First Minister’s announcement that since 26th July there have been 328 cases identified in Grampian – 198 of these associated with the cluster around Aberdeen pubs. A total of 1032 contacts have beeen traced.

As well as guidance for businesses the Scottish Government has also published updated guidance for hospitality customers to reinforce key safety measures.

First Minister Nicola Sturgeon said, “While many hospitality businesses have acted responsibly by adhering to the voluntary approach of collecting customer details, unfortunately too many others have not, and so – given the established high risk of virus transmission within hospitality settings – we have decided to make this mandatory.

“Strengthening this requirement to collect and share the data by moving it from guidance into regulations ensures that in the event of an outbreak, through the Test and Protect process, it will be possible to get in touch with anyone identified as a close contact who was present at the same time as an individual who has tested positive for COVID-19.

“This will help us break chains of transmission while continuing to allow us to socialise and support our local businesses.

“It is worth stressing that for those hospitality venues which are already complying with guidance, they will see minimal change to their procedures and operations.”

She specifically mentioned the issue of background music which is now prohibited saying,  “We are willing to work with sector to agree a more nuanced position on the decibel level. That will not be simple and will take time – so the rule is – no background music.”  Adding, “We want to make sure hospitality can remain open safely to guard against future outbreaks.”

To customers she said, “Finally I would ask customers to minimise number of premises they visit in one day.”

Chief executive of the Scottish Beer and Pub Association Emma McClarkin said, “The majority of Scotland’s pubs and bars had already gone above and beyond in putting measures in place to keep customers safe during this time.

“These changes today will help ensure those premises which have fallen short no longer do so, and we welcome that clarity.

“We’re all in this together and the stronger we are now, the sooner we will be able to see these restrictions disappear.”

New statutory guidance for the hospitality sector has also been published which explains how to keep a record of customer and visitor contact details securely ensuring data protection principles are upheld.

The Scottish Government has also published updated guidance for hospitality customers to reinforce key safety measures.

Measures that take effect 14 August 2020

Noise control – no background music and televisions on mute and sub-titled

While previously low level music/volume was permitted it is now necessary to ensure every effort is made to reduce noise levels to a minimum in hospitality premises so people do not need to raise voices to be heard or get closer to others – this presents an increased risk of transmission that must be mitigated.   As noise control is a complex area with many variables, further work is required to understand how it can be managed safely and consistently across the sector so that it does not pose a risk.  The Scottish Government will work with industry on this issue and it will be kept under review but a cautious approach is required at this time in the interest of public health.

Noise control: loud behaviour

Where customers start to shout or sing this should be challenged.  Clear signage can help with messaging to inform customers of expected standards of behaviour.  Revised customer guidance and additional communications to accompany this guidance will also highlight these messages to the public.

Queue management

There is an increased risk that physical distancing will not be observed in queues in a hospitality setting, particularly during evenings. Except for take-away services where queueing must be managed with physical distancing, there should be no queueing inside premises, such as at bars, and systems should be in place to ensure this does not happen. Steps should be taken to avoid queues outside the premises as much as possible but where unavoidable for safety reasons, measures should be taken to ensure physical distancing. Exceptions would include small businesses such as cafes providing takeaway services or where numbers of customers turn up simultaneously and need to be held in line for a short period of time until they can be safely checked in.  Holding people in line generally to wait for others to leave and make space is not a valid reason.Businesses who already have strong measures in place to manage external queues with physical distancing should retain these for when they may be needed for safety reasons.

Mandatory collection of customer/visitor contact details to support Test and Protect

This is no longer voluntary – Customer detail collection guidance has been updated on specific actions, and businesses should review their arrangements to ensure they are compliant.

Existing measures

One metre physical distancing relates to premises already applying additional mitigating measures to use this exemption, otherwise 2 metres applies.

One metre physical distancing

Everyone visiting a hospitality setting must remain at least 1 metre apart from the next person, unless from the same household or a carer. Businesses must review layouts and take all reasonable measures to ensure 1 metre spacing, including back to back and or side to side arrangements between seated groups, using physical separators/screens where necessary and or one way systems.

Physical distancing, capacity management and no crowding

Businesses are reminded that capacity should be determined by the need for physical distancing and numbers must not exceed safe limits.  Systems should be in place to safely manage capacity to avoid overcrowding. It is essential that crowding in general is not permitted.  This is an identified risk and must be avoided at all times.  Businesses should challenge any occurrence of crowding and remind customers of their duty of care to the business and each other by observing physical distancing.

One metre zone signage

It is essential that clear signage is displayed at entry points and throughout the premises to inform customers that they are within a 1 metre physical distancing zone and, most importantly, that everyone is reminded to observe the requirement to remain at least 1 metre from the next person, unless from the same household or a carer.

Cleaning and hygiene arrangements

There should be robust cleaning regimes in place around all shared and hard surface contact areas, including toilets, door handles, tables and chairs and service items.  Equally, provision of adequate facilities for regular handwashing or sanitising is a simple and effective measure to reduce the risk of transmission and should by now be a routine practice in premises, for staff and customers.

Management of toilet facilities

Management of toilet facilities presents an added challenge and is an area of increased risk, particularly in contained and narrow spaces where physical distancing is difficult.  Businesses must include in their risk assessments full consideration of how toilet facilities can be safely managed and used and implement the necessary measures.  Existing guidance on the safe use of toilet facilities will help with this.

Limits to households mixing indoors and outdoors

The limits on households mixing indoors and outdoors apply to hospitality and are critically important.  Businesses must ensure staff are aware of the limits when taking bookings and that they are ready to challenge any attempt to make bookings for numbers that clearly exceed the limits.  Staff should ask whether limits on mixing of households is being observed when taking enquiries and either reject a booking request which would exceed the limits or offer an alternative for a booking within the limits.  These are currently 8 people from up to 3 different households indoors and 15 people from up to 5 different households outdoors.  Where it is obvious groups of walk-in customers are starting to congregate (in either indoor or outdoor service spaces) and exceeding the limits then advice should also be offered on the limits for mixing of households.  Customer guidance has been updated to highlight the individuals’ responsibility in this regard to aid compliance.

Table service with no standing/all customers seated

Standing areas, particularly around bars and in front of televisions, can become crowded spaces making even 1 metre physical distancing difficult and must be avoided.  Physical distancing is easier to achieve at pre-arranged seating areas.  Businesses should implement systems to ensure there is no standing and that all customers are seated.

Face coverings for staff

While face coverings for customers is not a requirement at this time (though recommended in any setting where physical distancing may be difficult and to be encouraged), they should be made available for staff to afford them and others added protection, such as in front-of-house roles. It would be expected that a risk assessment for front of house staff would indicate a barrier to control the aerosol/droplet route of transmission is required. The most economical method to provide this barrier would be a face covering. The latest science indicates that face shield/visors are not effective barriers.

Improved ventilation

Adequate and good quality ventilation should be standard in indoor commercial spaces – businesses should consider current arrangements and whether additional measures are required to make improvements.  HSE guidance on this issue may be helpful.

Adequate provision of key information and training for staff

The sharing of current and good advice is key to cooperation between businesses and their customers and will help the collective effort to keep coronavirus at bay.  All reasonable measures must be taken to ensure staff are in possession of key facts to help with overall compliance.  This includes the now mandatory requirement to take contact details, reminding customers to observe physical distancing, advising customers on new safe processes for ordering and reminding customers that collective compliance will help protect businesses.

Measures under consideration

Guidance will continue to evolve as we learn more about coronavirus and how it behaves in society, and in particular within the hospitality sector.  It may be necessary to introduce further measures in due course if there is evidence to support it, just as it may also be possible to ease current restrictions if the evidence to support that is there.  In the meantime, it is of paramount importance that every reasonable effort is made by all to keep coronavirus under control. We will continue to explore other options to avoid risky behaviours and practices – this could include (but is not limited to):

  • measures to limit the number of premises visited in one day – customers are already being advised against pub crawl activity in revised customer guidance
  • entry cut-off points – businesses may restrict entry to premises after a certain time to limit late evening transit between premises
  • face coverings within premises for customers when not eating or drinking i.e. arrival/departure and when using shared facilities

These will be kept under review and further updates will be provided in due course.

What is meant by reasonable measures

What constitutes a reasonable measure can vary within types of premises within the hospitality sector. Businesses operating in the hospitality sector should do all that they can in premises to change the way they work and to change the way premises are used in order to ensure compliance with the rules.

This guidance outlines the considerations that businesses and organisations should take into account in determining the appropriate measures within the individual risk assessments for their premises. It is for those businesses subject to the requirements to justify the reasonable measures that they have adopted and identified in their risk assessments. They will need to be able to demonstrate how they have considered what is reasonable to minimise the risks faced by workers in their workplace and to those entering the premises. As per the sectoral specific guidance we advise employers to consult with their workforce when undertaking a risk assessment and share this within the workforce.  This should also follow our fair work statement.

Relevant considerations to deciding whether measures are reasonable

Businesses are entitled to consider:

  • the nature of the work – are the measures practical, or would they so undermine the delivery of the service or undertaking of the business that they would be counterproductive?
  • can measures be put in place without compromising the health and safety of others? If measures would increase the health and safety risk, these would most likely not be reasonable measures.
  • measures should command staff’s confidence that due consideration has been given to the level of risk that they face. Employers may wish to introduce mechanisms to receive feedback on the measures that they have introduced
  • cost – is the cost of the measure proportionate to the number of people whose risk is reduced by the measure?

Enforcement

We expect that businesses and others understand the severity of the situation we are facing as a society and will take the reasonable steps necessary.

By working together, we hopes that employers, employees, supply chain workers and customers can come to a reasonable judgment on the best way to limit close physical contact. It is in all our interests for this to happen so that important work can continue.

Both Police Scotland and local authorities have powers to enforce the restrictions on businesses, services and workplaces imposed by the Regulations. In extreme cases where non-compliance is evidently posing a direct risk to public health a prohibition notice may be served.  In addition, we are working with local authorities to strengthen measures that will empower enforcement officials to target risky or non-compliant practices in order to swiftly identity and rectify any issues.

Review

We review the Regulations every 3 weeks. These reviews provide an opportunity to assess the effectiveness and consequences of the provisions. It will also provide an opportunity to engage with stakeholders from all sectors to inform the process.

In addition, guidance will also be kept under review as we learn more about coronavirus, how it behaves in society and how sectors are performing within existing guidance.

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