29 March 2021 saw the coming into force of the Health Protection (Coronavirus, Restrictions) (Steps) Regulations 2021 (the Regulations). The Regulations embody the process envisaged for the unlocking of England (different rules apply in Scotland, Wales and Northern Ireland) over a series of ‘steps’, with the ambition that restrictions will fall away entirely by a target date of 21 June 2021. That target date, first announced by the Prime Minister on 22 February 2021, ought to be viewed now in the context of the vote on 25 March 2021 to extend the Government’s emergency Covid powers until September 2021.
For the hospitality industry, amongst the heaviest impacted by restrictions, it is step 2 that represents the beginning of the unlocking. It has been represented widely that step 2 is set to take effect from 12 April 2021. Businesses across the country are busily preparing for that date. The Regulations provide however that it is for the Health Secretary to “review the need” for the restrictions by 12 April and at least once every 35 days thereafter. This takes us to another stated target date for the easing of restrictions to ‘step 3’: 17 May. The pressure is on however to meet these staged dates, not least, as the Regulations expire on 30 June.
For hospitality, by way of food and drink (not nightclubs or many evening orientated venues, which must wait until at least 21 June), step 2 represents a return to permitted outdoor service. Indoor premises are to remain closed under step 2, toilets and baby feeding and changing rooms aside. A distinction is drawn between those businesses that sell alcohol and those that do not. For those that do not, entry indoors is permitted for the purposes of paying for food and drink. For those that do (not whether the customer is purchasing alcohol) ordering, payment and service is to a customer seated outdoors only. An alcohol selling establishment or not, the requirement on the business to take “all reasonable steps to ensure that the customer remains seated outdoors whilst consuming the food or drink on the premises”. The requirement that alcohol is only served alongside a “substantial meal” will not apply.
For step 3, the category of remaining closed hospitality venues narrow but still includes nightclubs and anywhere that involves dancing, but the ability to serve indoors returns. The same distinction under step 2 applies, with venues serving alcohol being required to maintain table ordering, service and payment but counter/ till payment allowed in non-alcohol serving premises. The requirement on businesses to use “all reasonable steps” to ensure that the customer remains seated remains.
Steps 2 and 3 require businesses to undertake risk assessments and to continue to view covid as a health and safety hazard. For many businesses, this may replicate the risk assessment and protocols in place before the second lockdown. Such risk assessments may include, non-exhaustively, additional cleaning protocols, reminding customers to wear face coverings, ensuring customers socially distance, considering ways to improve ventilation on the premises and, of course, working with NHS Test and Trace. The requirement to operate risk assessments in business (against a background of health and safety legislation) does not end on 30 June 2021 with the Regulations. The continuing risk of Covid (restrictions aside) represents the genesis of the debate of what will things look like beyond the unlocking.
Covid will remain a health and safety risk and it is for businesses to respond in their risk assessments to dealing with that to meet ongoing health and safety compliance. For many hospitality businesses, high volume footfall (invariably at certain times of the day) is critical both economically and often for the type of offering and its appeal. It therefore represents a significant challenge and the crux of a thorny debate as to how one addresses risk assessments focused on covid with an increasingly vaccinated population.