Making Sense Of The Scottish Government Guidance For Licensed Premises

• Published date: 12 August 2020
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Government Measures, Employment and Workforce Wellbeing
• Law Firm: Gilson Gray
• Author: Ms Joanna Millar

Further to the First Minister's announcement on Thursday 18^th June, there are many Scottish licensees who are understandably upset and disappointed that beer gardens and street café areas were not able to open on 19^th June. They are also frustrated about the lack of certainty in the steps going forward. Albeit 15^th July has been suggested as a date when the on trade in Scotland could open, given the announcement on 18^th June, there is no guarantee when the on licensed trade will be able to open.

The Scottish Government published guidance on 18^th June for the Tourism and Hospitality sector. While this is called "guidance", some of it is set in stone. Operators need to have taken the actions referred to in the guidance before they can reopen. The guidance itself is very detailed, however, here is a summary of what is required.

1. Risk assessment:

Each premises must carry out a risk assessment. If an operator has fewer than five employees, they do not need a written risk assessment, however, licensing boards and their LSO's may prefer to see a written statement. If there are more than five employees, the risk assessment must be a written document. The guidance stresses the risk assessment must be carried out after discussion with employees and refers to it being a "joint effort between employers and employees". It must also take into account the health and safety of employees and customers.

2. Physical distancing:

The guidance places the responsibility on the business operator to take all "reasonable measures" to ensure physical distancing is established and maintained. This remains two metres distant between anyone not in the same household. Entry must be restricted entry to ensure maintaining a 2 metre distance is possible. Operators must also ensure anyone waiting out with the premises is adhering to the two metre distance necessity. This will require floor and other markings both inside and outside premises.

3. Employee consultation:

While there is an existing requirement for employers to consult with employees on health and safety, the guidance puts in place a specific requirement for employers to talk to all employees (from bar staff to cleaners and contractors) on how the employer will manage risks. It states that employers should "constructively engage with employees when carrying out a risk assessment". Operators should consider the following:

1. in consultation with employees - ensure there is no disproportionate impact to those who are vulnerable such...