At a recent webinar, experts from our Commercial Property, Employment and Commercial teams shared their thoughts on what the key considerations are in advance of bars, pubs, cafes and restaurants re-opening this Saturday.
The 4 July has quickly been dubbed ‘Super Saturday’, as it heralds the long awaited reopening of the hospitality sector. Although lockdown is easing, it is certainly not going to be back to business as usual for the industry.
According to research from the CBI, just over 50% of businesses will be opening on Saturday 4 July, with many preferring to take a very cautious ‘wait and see’ approach, especially when it comes to opening up seated areas.
Although many big chains will be reopening for a take away service, don’t expect to see seated service resume for the time being. While there are so many unknowns, a lot of establishments will first gauge demand from the public, as well as wait for further clarification and guidance from the Government.
Those that are reopening, either for take away or for seated service, have been busy putting extra measures in place to keep customers and staff safe. These include thorough risk assessments, PPE as needed, new screens to cover counters, table spacing, reduced menus and shorter opening hours.
Outside seated areas
In order to maximise space while keeping to social distancing rules, many cafes, bars and restaurants may wish to have tables and chairs on the pavement outside their premises. At a local level, both Tunbridge Wells and Tonbridge Borough Councils have temporarily relaxed the requirement to apply for full planning permission for seating, tables and the storage of goods on pavements.
However, businesses still need to email their Borough Council and the Highways Authority directly with draft plans and dimensions to ask permission, and they should receive a reply in two to three working days. There is no charge for this locally. Nationally there is a cap of £100.
To apply for a licence you need to complete the application for a permit to place tables and chairs on the pavement or road on the Kent County Council website.
As more people will potentially be walking or cycling rather than getting public transport, businesses should consider offering places for customers to store/lock their bikes.
NHS Track and Trace Scheme
The Government’s 'keeping workers and customers safe during COVID-19' document, which was last updated on 23 June, contains a raft of information for organisations to digest and implement ahead of the 4 July.
In amongst the guidance on social distancing and PPE requirements, there is also a new requirement to collect customers’ names and contact details, which could see establishments falling foul of data protection law, if they are not careful. The move is to help with the tracking and tracing of those with COVID-19 and seems highly sensible, however, such information combined with the whereabouts of the individual at the particular time, amounts to personal data and therefore the processing must comply with the GDPR as enacted in the Data Protection Act 2018.
While the exact nature of what needs to be recorded and how it will be used is yet to be published by the Government, the guidance states that restaurants, bars and pubs will need to keep hold of the data for 21 days, before deleting securely.
While this is not a legal requirement, business do need to think carefully about trying to comply, as if there is a spike in virus cases and track and trace procedures are not seen as effective, then the Government may introduce another lockdown, which would mean businesses having to close again.
Equally, some people may not want to give their details and of course businesses cannot force them to do so, but it is best practice during these times to attempt to collect details if possible.
The first step is to establish what the legal basis for collecting data is. This will of course depend on what the Government mandates. Assuming there is an “order” to collect the information, businesses can rely on the legal basis of “complying with a legal requirement.” If the Government does not introduce a form of legal requirement and the collection of data remains guidance, businesses will need to establish consent.
Make sure to explain to customers at the point of data collection, exactly why this information is needed, how it will be stored and potentially shared and when and how it will be deleted.
In the case of tracking and tracing, accuracy is important not just so that anyone who needs to be traced and informed that they have been in contact with someone with the virus, can be, but also to reduce the risk to businesses of claims from customers who they are not able to contact but who may go on to develop the virus and seek to recover losses from the establishment.
While a mandatory capture of customer contact details feels like a perfect opportunity to boost marketing databases and to gather business information about customer preferences, but it is not straightforward. A safer approach is to simply use the compliance information only for the purposes of contact tracing individuals as part of the wider coronavirus track and trace system. This may feel like a lost opportunity but will make the likelihood of breaches of data protection law far less likely and will go towards reassuring customers who are uncertain about giving over their contact details.
As more business open up again, many of those who have furloughed staff, may wish to take advantage of the ‘flexi-furlough’ arrangements which came into force on 1 July. Employers can now bring back furloughed employees to work part time whilst still claiming the Coronavirus Job Retention Scheme grant. Flexi-furlough arrangements can apply to a variety of work patterns, including employees working two-three days a week or working only mornings or afternoons.
The deadline to furlough employees for the first time passed on 10 June 2020, aside from those on maternity, paternity or other parental leave. However, employees who had been previously furloughed since 1 March 2020 and then come back to work can be re-furloughed for a new period of three consecutive weeks before 1 July 2020, even if the three consecutive week period ends after 1 July 2020.
When it comes to dealing with employees who may be reluctant to return to work, employers need to be cautious. However, if an employee is not vulnerable and shielding and does not live with someone who is vulnerable and shielding and they can also travel to work without using public transport, then there is no legal basis for them to refuse to return to work.
While it appears that so called ‘super Saturday’ may be a more cautious affair than the national press would have us believe, it is encouraging that many businesses can start to open up again.
It will be interesting to see what consumer appetite is for returning to pubs, bars, cafes and restaurants. Watch this space!