Out-Law / Your Daily Need-To-Know

Covid-19 restrictions in UK and Irish hospitality

Out-Law Guide | 20 Jan 2022 | 4:54 pm | 14 min. read

Hospitality businesses continue to be impacted by the Covid-19 pandemic, including by public health measures designed to curb the spread of the virus.

With health policy primarily devolved in the UK, a complex web of public health measures has emerged, with distinct approaches for England, Scotland, Wales and Northern Ireland being adopted. Ireland too has its own specific rules affecting hospitality businesses.

England

All legal restrictions imposed in England in response to the Covid-19 pandemic were lifted on 19 July 2021. This allowed indoor and outdoor events and venues, including nightclubs, to re-open and operate without restriction on the numbers attending or social distancing.

However, hospitality businesses do have a legal duty to manage risks to those affected by their business. This includes the risk of Covid-19. Businesses must take reasonable steps to mitigate such risks.

The Working Safety guidance outlines examples of mitigations which employers should consider, these include cleaning surfaces that are touched frequently, providing hand sanitiser for customers and staff and improving the air flow in poorly ventilated areas.

Although not a legal requirement, venues are encouraged to continue displaying QR codes for those customers who want to check in using the NHS Covid-19 app to support NHS Track and Trace.

The UK government announced on 19 July that its intention was to make vaccination a condition of entry to nightclubs and other large venues from the end of September 2021. However, the government subsequently stepped back from introducing so-called ‘vaccine passports’ after considering the take-up of vaccination, considering it unnecessary to follow through with its plans.

However, the emergence of the new Covid-19 variant, Omicron, spurred the government to announce new restrictions on Tuesday 30 November, which it described as temporary and precautionary measures. Most relevant to the hospitality and leisure sectors was the reintroduction of the legal requirement to wear a face covering in certain settings. It is now a legal requirement to wear a face covering, unless an individual is exempt, on public transport, in shops, banks, post offices and hairdressers.

The Covid-19 restrictions were subsequently updated again as a result of the growing number of cases of the Omicron variant. On Wednesday 8 December the government announced that their ‘Plan B’ strategy would be implemented in England.

Additionally, as of Friday 10 December, the compulsory use of face coverings was extended to the majority of public indoor venues, namely cinemas, theatres and places of worship. However, where it is not practical to wear a face mask, for example when eating, drinking or exercising, there will be exemptions.

On 19 January 2022, the prime minister announced that restrictions will once again will be relaxed and the 'Plan B' restrictions removed. Sajid Javid, the health secretary, explained that that the Omicron variant is “in retreat”. Amongst the changes, the working from home guidance was revoked with immediate effect. The compulsory wearing of face masks will be removed across all venues and settings as of Thursday 27 January. An additional significant change is that as of Thursday 27 January, Covid passes will no longer be compulsory at large events. It will be the venue's decision as to whether it wishes to continue to use Covid passes or not. The NHS Covid Pass,which can be accessed on the NHS app, demonstrates proof of two vaccine doses.

Scotland

Regulations introducing required checks for vaccine certification at some hospitality venues were introduced in Scotland on 1 October 2021. Though a series of exemptions apply, those restrictions apply generally to “late night premises” which means any premises at which alcohol is served at any time between 0000 hours and 0500 hours; there is a dancefloor, or other designated space, provided for dancing by customers, and; live or recorded music for dancing is played. Since 6 December 2021 onwards, it has been possible for individuals to access venues or events by showing a qualifying negative lateral flow or PCR test instead of their vaccine certificate. The regulations have been updated to reflect this change.

The regulations also impact on large outdoor events – such as rugby or football matches where more than 10,000 people are expected to attend – as well as other outdoor events where 4,000 or more people will attend and not all will be seated. In addition, the requirement applies to events taking place mainly indoors where 500 or more people will attend and not all will be seated.

Businesses are required to have a “reasonable system in place” for administering the vaccine certification scheme and are further required to have regard to Scottish government guidance when considering what constitutes a ‘reasonable’ system. This provides a degree of flexibility in relation to how individual businesses choose to achieve compliance. As of 17 January 2022, organisers of events of over 1,000 attendees must check Covid certification of at least 50% of attendees or 1,000 people, whichever is higher. The definition of “fully vaccinated” for the purposes of covid certification will also be changed to mean a person who has had a booster dose unless less than four months have passed since their second dose of the vaccine.

Guidance issued by the Scottish government also emphasises that businesses still need to comply with their various obligations relating to health and safety, employment or equalities law.

The regulations further require businesses to have compliance plans in place and update them every six months.

Non-compliance can lead businesses to be fined up to £10,000.

There is specific provision made for licensing whereby no licensing offence will be committed for late night premises after midnight if the service of alcohol is ceased between 0000 hours and 0500 hours, or provision of a dancefloor, or other designated space, for dancing by customers is ceased, or provision of live or recorded music is ceased. The rules have prompted some licensed premises to make adaptations in a bid to remain open for business longer and avoid costly compliance measures. In Edinburgh, for example, LuLu, traditionally a night club, elected to put furniture on its dancefloor in a bid to recategorise the premises and avoid vaccine certification requirements. Scotland’s first minister Nicola Sturgeon announced on 18 January that changes to the definition of "late night premises" in the regulations are being made to avoid night club operators trying to rely on this particular 'dance floor' loophole.

The vaccine certification requirements were subject to a legal challenged lodged by the Night Time Industries Association. However, the legal challenge failed on the basis that the measures were not shown to be “disproportionate, irrational, or unreasonable”.

During the first minister’s announcement on 11 January, it was mentioned that the government is still considering whether to propose an extension of the scope of the covid certification scheme to other venues. This was considered by the Cabinet and at a further announcement on 18 January, it was confirmed that it had been decided that extension of the scheme would not be proportionate at this time given the positive trends in the data around the Omicron variant.

Although there is currently no legal requirement to do so, in December 2021, the first minister urged the Scottish workforce to resume working from home where this is possible. The aim is to move to a more hybrid approach of some office and some home working from the start of February 2022.

At a briefing on 10 December 2021, the first minister warned of the increased transmission of the Omicron variant and highlighted a new evidence paper published by the Scottish government. She said the Omicron variant is expected to “run riot” through the population. Though no new restrictions on hospitality were announced at the briefing, the first minister urged employers and staff to defer Christmas parties planned over the festive period and suggested that rules and guidance may have to be tightened at short notice in the coming days. Changes to self-isolation requirements were introduced in December and amended further in early January 2022.

Subsequent briefings on 14 and 21 December were followed by new regulations, The Health Protection (Coronavirus)(Requirements) (Scotland) Amendment (no. 6 and no.7) Regulations 2021, and updated guidance.

Following the first minister’s announcement on 21 December the key points were:

From 26 December, limits were placed on the size of gatherings at live public events, with exceptions for private life events such as weddings.

  • Indoor standing events - 100;
  • Indoor seated events - 200;
  • Outdoor events - 500 (seated or standing);
  • Physical distancing of one metre will be required at events which go ahead

From 27 December, further protections in hospitality settings and indoor public places were introduced:

  • Table service only for venues serving alcohol for consumption on the premises;
  • One metre distance between groups of people who are attending together;
  • Maximum three households in any group.

In addition, nightclubs and dancehalls were ordered to close their premises to members of the public and not carry-on business at such premises.

As exceptions to the general rule about nightclub closures, premises may be used for the following purposes:

  • Recording a performance or sporting event;
  • Broadcasting a performance or sporting event;
  • To rehearse, train, practice or otherwise prepare for a sporting event;
  • To host blood donation or vaccination services, the latter if requested by Scottish ministers, a local authority or health board.

There is some suggestion that nightclubs may be able to repurpose and open as bars but this may depend upon the approach taken by individual licensing boards.

Although these measures were initially put in place for only three weeks, the only restriction to be lifted after the three weeks was the 500 capacity limit for outdoor events, which has no longer applied since 17 January. The other measures are continued for now but will also be lifted from Monday 24 January, reflecting positive news in relation to recent data. Base line measures will continue and include face covering requirements; businesses having regard to relevant guidance; hospitality collecting contact details for Test & Protect; and covid certification continuing in existing venues. No end date or criteria has yet been set. However, an updated strategic framework document is currently being prepared by the Scottish government and may contain further information about when all remaining restrictions may be removed.

Wales

Tougher Covid restrictions have been introduced for post-Christmas in Wales following a surge in Omicron cases in the UK.

The first minister announced a "two-phase plan" for the festive period.

From 26 December, two metre social distancing is mandatory in shops and businesses, alongside measures including one-way systems and physical barriers to protect customers and staff. Nightclubs are to be closed. Regulations will include a requirement to work from home wherever possible.

Until 27 December, the Welsh government is encouraging people to follow five steps, including getting vaccinated, making sure to have a negative lateral flow test (LFT) result before going shopping or meeting people, meeting in well-ventilated areas, preferably outdoors, spacing out socialising to allow test days in between, and adhering to social distancing, wearing a face covering and washing hands.

It has urged people to reduce contact with others, especially if Christmas plans include seeing older or more vulnerable people.

People are being urged to take LFTs before going out – for example shopping or visiting others.

The first minister announced that as of 26 December 2021 the following restrictions to tackle the raise in Covid-19 transmissions would be introduced:

  • Licensed premises must operate using table service only. Additionally, contract tracing details will once again have to be collected;
  • It will become mandatory to wear face masks within hospitality settings at all times apart from when seated;
  • The ‘rule of six’ will be reintroduced for regulated premises this includes all hospitality venues such as restaurants and pubs;
  • The two-metre social distancing rule will be mandatory in public places including workplaces, where reasonable;
  • There will be restrictions on the number of people who can attend events, for outdoor events there will be a cap of 50 attendees and for indoor events these will be capped at 30 attendees.

It remains mandatory for people over 18 years of age to show the NHS COVID Pass to attend nightclubs, unseated indoor venues with more than 500 people in the audience, any outdoor or indoor unseated venues with a capacity over 4,000 and any event which is attended by more than 10,000 people. This requirement was extended as of 15 November 2021 to require persons over 18 years of age to show the NHS COVID Pass to enter theatres, cinemas and concert halls. The mandatory implementation of the NHS Covid Pass is still in force, albeit in light on the latest restrictions effective from 26 December 2021, events will be capped to 50 people outdoors and 30 people indoors. There does not appear to have been an update as to whether attendance at those events requires a Covid Pass.

The Welsh government has said that the volume of coronavirus cases remains very high and to reflect this Wales will move into Alert Level 2 from 6am on Boxing Day. There is the potential for the NHS Covid Pass requirements to be extended further to other hospitality venues if case numbers do not fall.

The purpose of the Covid Pass in Wales is to prove that someone has either been fully vaccinated or that they have tested negative for coronavirus from a lateral flow test taken 48 hours before attending an event or venue.

There has been significant backlash to the implementation of NHS Covid passes in Wales, similar to that in Scotland.

It was reported in September that the Night Time Industries Association (NTIA), in a letter to Wales’ first minister Mark Drakeford, had expressed “fear that such measures would be immensely difficult to implement, have a hugely detrimental impact on trade, and would result in some of the hardest-hit Welsh businesses losing out to those in England, with very little public health benefit”. Civil liberties group Big Brother Watch commenced legal proceedings against the Welsh government on 9 November in relation to the implementation and extension of COVID passes, describing them as "authoritarian, invasive and unevidenced". Protests have also been held following concerns that the COVID passes place unreasonable restrictions on personal freedom.

The Welsh government has also implemented ‘action cards’ which provide advice to hospitality businesses on reasonable measures to take to minimise the risk of coronavirus transmission at their venues. The guidance supplements rather than replaces Welsh regulations. Hospitality venues are required to take reasonable measures to minimise the risk of exposure and spreading coronavirus. These businesses must carry out an assessment as to the risk posed by coronavirus at their premises. The assessment should form the basis of deciding what measures should be implemented.

Northern Ireland

The NI Executive announced on 20 January 2022 that from noon on 26 January there will no longer be a legal requirement for vaccine passports in hospitality settings. These will, however, be required for nightclubs and for indoor unseated and partially seated events with 500 or more people. Nightclubs can reopen from 26 January with dancing and indoor standing events permitted again.

Rules on table service setting a maximum of six people per table will be removed from noon on 21 January.

The guidance limit of three households allowed to meet indoors in a private home will also be removed on 21 January.

Ireland

The Irish government approved a series of public health measures in early December 2021 that impact the hospitality industry. Many of the measures, which took effect on 7 December, are those that were previously in place prior to an easing of restrictions on 22 October.

The rules require bars, including hotel bars, and restaurants to offer table service only; to limit the number of adults to a table to six – and 15 in total when including children aged 12 or younger; and to ensure there is at least one metre separating tables with no mixing permitted between tables. Customers must wear masks when not seated at their tables. Licensed premises can remain open until midnight.

Hotel bars and restaurants must also require customers to provide proof of vaccination or recovery via the COVID Pass in Ireland as a condition of access to the premises. This requirement applies to hotel residents, although there are exemptions for permanent hotel residents.

Night clubs are prohibited from opening at all under the current rules, at least until 9 January when the restrictions apply until.

Other indoor hospitality settings hosting entertainment, cultural, community and sporting events can remain open, though a series of restrictions apply.

There is a ban on standing at such events, which impacts live entertainment venues in particular.

The maximum capacity at indoor entertainment, cultural, community and sporting events has also been capped at 50%. Exemptions apply to religious or educational events or normal workplace business activity.

Everyone attending indoor events must be fully seated and face masks must be worn at all times unless individuals are eating or drinking.

The COVID Pass vaccine certification or recovery requirements apply to gyms and leisure centres as well as hotel bars and restaurants. An exemption applies to access to swimming pools or standalone swimming pool facilities, though gym and leisure centre attendees need to provide proof of immunity upon entering such facilities.

As far as outdoor sports and organised events go, there are no restrictions applicable to capacity or proof of immunity at this time.

Indoor group activities and sports, including group exercise, dance classes, amateur sports training and matches, play centres, amusement arcades and bingo halls, should take place in pods of up to six people where there is a mix of vaccinated and unvaccinated participants. However, there is no upper capacity limit for indoor group activities. The pod system can be adjusted to allow for indoor games and competitions where participants are children.

Gym and leisure centre attendees now need to provide proof of immunity upon entering such facilities. Proof of immunity is not required to access swimming pools, whether individual facilities or pools within gyms and leisure centres.

There are no restrictions applicable to capacity or proof of immunity at this time in relation to outdoor sports and organised events in Ireland.

Indoor group activities and sports, including group exercise, dance classes, amateur sports training and matches, play centres, amusement arcades and bingo halls, should take place in pods of up to six people where there is a mix of vaccinated and unvaccinated participants. However, there is no upper capacity limit for indoor group activities. The pod system can be adjusted to allow for indoor games and competitions where participants are children.

In the retail sector, shoppers and staff must wear face coverings, while hairdressers and others offering personal services can open by appointment only.

Separate rules apply to gatherings for weddings. There is no limit on wedding attendees and live music is permitted. Wedding receptions must finish at midnight and must follow general hospitality guidelines.

In March 2021, the Irish Council for Human Rights, with Tracey O’Mahony acting as plaintiff, instituted proceedings against the minister for health, the state and the attorney general. The proceedings challenge the authority of the minister to introduce Covid-19 restrictions via secondary legislation under section 31A of the Health Act 1947, alleging that the legislation is an unconstitutional breach of the separation of powers outlined in the Irish Constitution. The case is understood to have stalled but remains active.

A separate application for judicial review of emergency legislation introduced in response to the Covid-19 pandemic, initiated by former journalists Gemma O’Doherty and John Waters, was refused by the High Court in early 2021 as the arguments forwarded were not deemed to fall “within the category of public interest proceedings”. This decision was affirmed by the Court of Appeal in April 2021.

A judicial review challenging the constitutionality of Covid-19 emergency legislation was also initiated by Blue Whisp Ltd in March 2021 but was struck out in late April 2021. Blue Whisp Ltd is controlled by Paddy McKillen Jnr and Matt Ryan, the same individuals whose group Press Up have substantial interests in leisure and hospitality in Ireland. Press Up Ltd also sued the state, via the minister for health, in October 2020 but these proceedings were also struck out in May 2021.

Additional contributors: Deirdre Cormican; Kirsty Gallacher; Hannah Burton; Aisling Taggart; Lewis Cheyne; Alice Crighton; Hugh Gibbons; Con Berkery, all of Pinsent Masons.