From 15 July 2020 restaurants, bars and eateries in Scotland can open their doors and allow customers inside. The following provides guidance on the key areas those working in this sector should consider when opening or re-opening premises during COVID-19 restrictions.
1. Managing staff who are impacted by COVID-19, or at greater risk. y Remind workers of COVID-19 symptoms, and the circumstances in which they must self-isolate. y Employees self-isolating in line with government guidance are entitled to statutory sick pay (SSP) from the first day off work. If you have less than 250 employees, you may be able to claim reimbursement of some COVID-19-related SSP. y In assessing whether it is safe for workers to return to the workplace, consider your duties to vulnerable workers. y Be aware of the options for staff unable to work due to childcare issues. You can find detailed advice on these issues on Workbox at Coronavirus: FAQs for Employers. 2. Flexible furlough and tapering furlough grants. Since 1 July, you have been able to bring furloughed employees back to work part-time and still claim under the furlough scheme for any normal hours not worked (subject to caps). Detailed guidance on furlough can be found by visiting our dedicated HR platform Workbox by Brodies. Please also see our Tax section below. 3. Job Retention Bonus The UK Government will make a one-off payment of £1,000 to UK employers for every furloughed employee who remains continuously employed, and earns on average above £520 per month, to the end of January 2021. TOP THINGS TO DO: 1. Changes to your business You may have to consider making redundancies, restructuring, outsourcing, or changing terms and conditions (for example, to bring in a new shift system for health and safety reasons, or to reduce hours or pay). If you are proposing 20 or more dismissals at one establishment within 90 days, you’ll need to ‘collectively consult’ with appropriate representatives: for 100+ dismissals, consultation must begin at least 45 days before the first dismissal takes effect; and for 20 – 99 dismissals, the period is 30 days. You can carry out redundancy consultation and make employees redundant during furlough. 2. Consider your approach to changing employees’ terms and conditions Employees may be willing to agree to changes to their terms and conditions but, if not, one option is to dismiss and offer re-engagement on the new terms. If this results in 20 or more dismissals at one establishment within 90 days then, as above, you’ll need to ‘collectively consult’. Manage annual leave balances 3. Manage annual leave balances Guidance on annual leave, including whether you can insist on this being taken during furlough, and workers’ entitlement to carry forward statutory holiday if it was ‘not reasonably practicable’ to take it due to coronavirus, is available at Workbox by Brodies. TOP THINGS TO THINK OF: 1. Increase in grievances, whistleblowing and health and safety-related complaints Have clear procedures for dealing with these (see our health & safety guidance below). You should not dismiss an employee or subject them to a detriment simply because they make a health and safety complaint or blow the whistle. In addition, if an employee refuses to attend work because (i) they reasonably believe there is a ‘serious and imminent danger’ – perhaps because you have insufficient measures to protect against COVID-19; and (ii) the employee cannot reasonably be expected to avert the danger (for example, by adhering to your health and safety protocols), then it is automatically unfair to dismiss them, and unlawful to subject them to a detriment (such as a disciplinary sanction), as a result. 2. Discrimination Employees and other workers, including those on zero-hours contracts, are protected against discrimination. In implementing new policies or procedures, or reaching decisions on, for example: a. changing terms and conditions b. making redundancies c. who will return from furlough, or be allocated hours via flexible furlough, be aware of the risk of discrimination on grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex or sexual orientation. 3. Data protection Health information, such as whether a worker (or someone they live with) has COVID-19 or an underlying health condition; or information from temperature checks or COVID-19 testing is ‘sensitive personal data’, meaning that stricter rules apply to its collection and use. If you are considering temperature checks or COVID-19 testing, read our data protection blog. COVID-19 guidance: Pubs, restaurants and eateries 4 PLANNING TOP THINGS TO KNOW: 1. Planning permission is required for material changes of use as well as building works. For example, expanding dining areas of hospitality premises to accommodate social distancing may require permission for change of use if the new space was being used for another purpose, such as retail. 2. Uses which are ancillary to the main use do not require separate permission. This may help to support smallscale diversification, such as using an area of a restaurant or café for selling produce or running a food collection service. 3. Planning policies are often restrictive and can vary between local authority areas (this is no different in the COVID-19 landscape). TOP THINGS TO DO: 1. Check with your local planning authority if planning permission is required before carrying out any works or changes of use. 2. Get an estimate from the planning authority as to how long it might take for planning permission to be granted, 3-6 months is not unusual. TOP THINGS TO THINK OF: 1. Check whether your plans can benefit from temporary use rights, which avoid the need to apply for planning permission. 2. Scottish government guidance encourages councils to temporarily relax planning controls during the COVID-19 period in respect of measures such as pavement seating areas for cafés and bars; beer gardens (subject to licensing requirements) and permitting trading beyond any seasonal operating restrictions. 3. Tenants should check whether their lease restricts changes of use before making any changes (and speak to their landlord if in any doubt). COVID-19 guidance: Pubs, restaurants and eateries 5 CONTRACTUAL DISPUTES TOP THINGS TO KNOW: 1. How to terminate the contract You need to be aware of how the contract can be terminated, either by you (a ‘get out’) or by the other party (do they have the right to terminate?). While it depends on the specific terms, contracts typically can be terminated on several grounds, including illegality, breach or insolvency. Of particular significance in the present circumstances may be the inclusion of a force majeure clause, and the effect this will have on termination. See our blog here. In some cases, these terms can be implied into the contract even if not an express term. 2. Notice Provisions for termination Do you need to give notice of termination? If so, what time period and in what form? A failure to provide proper notice may be a breach of contract. Consult our top tips for serving a termination ‘notice’. 3. Liability – is liability limited, or excluded? A valid and effective ‘limitation of liability’ clause or ‘exclusion’ clause will operate to limit or exclude damages that may be claimed if a breach of contract occurs. The Courts will apply a ‘reasonableness’ test to determine if the clause is valid. A contractual term that seeks to exclude all claims for financial loss is likely to be considered as unreasonable by the Courts. Read our blog on ‘exclusion’ clauses here. TOP THINGS TO DO: 1. Review the contract and identify the cause of dispute. 2. Try to find a resolution and consider the dispute resolution clauses in the contract. 3. Consider obtaining legal advice to help resolve your dispute. TOP THINGS TO THINK OF: 1. To terminate or not? If there is a dispute, do I want to terminate the contract (and if so how)? Or try and resolve? 2. Notice, Notice, Notice – how much notice, and in what form, do I need to give? 3. Keep records If parties are in dispute, make sure a clear record of your attempts to resolve the dispute asserting your position to the other party exists.
