While it's fair to say that Scotland has adopted a slightly more cautious approach to relaxing social distancing measures than its English neighbour, the move back towards some semblance of normality is now well underway.

The retail industry has already seen the reopening of all high street shops from 29 June, while those within shopping centres are set to reopen on 13 July. Indoor (non-office-based) workplaces are now also permitted to open along with outdoor markets, outdoor sports courts, zoos and garden attractions. Meanwhile the current restrictions on travel beyond local limits (i.e. roughly 5 miles) are set to be lifted on 3 July.

It has been well-documented that the hospitality and leisure industries are targeting a reopening, in accordance with the Scottish Government's route map, on 15 July – and outdoor hospitality (subject to physical distancing rules and public health advice – and the vagaries of the Scottish climate) is gearing up for a potential reopening as early as 6 July.

The following guidance covers some legal considerations which the leisure and hospitality industries might want to bear in mind when planning to reopen.

Maintaining Health and Safety

Social distancing is the law in Scotland, whereas in England and Wales it is merely guidance. In Scotland, a 2m distance is still the required minimum and might well pose a challenge for leisure and hotel premises re-opening. However, it is not just social distancing that needs to be considered before businesses can re-open.

Central to any employer's legal duties in terms of health and safety, is risk assessment. It is important to carry out a COVID-specific risk assessment considering how and where the risks of transmission may be a factor in your business and identifying the steps to be taken to mitigate those risks. The scope of this risk assessment may now be wider than it was pre-COVID as employers consider how their staff get to work as well as looking at how many staff can return. Consider also which staff will return to work, based on whether they have vulnerable relatives or underlying health conditions. It is also recommended that you stagger start and finish times so that not everyone is arriving or leaving the premises at the same time.

Employers should also review existing risk assessments and method statements/standard operating procedures to ensure that they remain suitable and relevant to the way in which the business will be operating once re-opened.

It is important to be aware of an employer's legal duty to consult their workforce on the health and safety arrangements at work. If your workforce is unionised, then you should consult with the union appointed health and safety representative. If there is no union involvement, then the workforce should be consulted directly or via their own appointed health and safety rep.

Remember, the focus in terms of social distancing is not only relevant for front of house operations. If you have a staff room or communal changing facilities, you will need to consider a staggered use of these or perhaps, encouraging staff to arrive ready for work. Items in communal areas, such as kettles or microwaves, may need to be removed or additional cleaning procedures put in place to minimise the risk of transmission.

Beyond the social distancing steps being taken, consider providing your customers/guests with information on how your business is mitigating the risks. The UK Government has produced a certificate for businesses to display, demonstrating their compliance which will become widely recognised and potentially looked for by customers throughout the UK. Provision of additional hand sanitiser stations throughout your premises may also help to reassure customers.

For further information on the health and safety considerations for reopening your business contact Victoria Anderson.

Planning for recovery

Mindful that the summer season is well and truly upon us, the Scottish Government has urged local councils to temporarily relax planning controls in some instances to help businesses adapt and diversify quickly as restrictions start to be lifted.

For those in hospitality and tourism, the types of measures suggested include allowing:

  • pavement seating areas for cafes and bars;
  • the use of outdoor areas, such as beer gardens – see the section below on the licensing requirements which apply; and
  • holiday parks and other seasonal businesses to continue to trade beyond any usual fixed months of operation.
  • Ancillary use – Land or buildings can be used for an additional purpose if it remains a minor one relative to the primary use. Again, each case will depend on its own facts but, for example, a hotel or restaurant would likely be able to use a small area for selling produce or for running a food collection service.
  • Temporary use – Land can be used for any temporary purpose (except as a caravan site) for up to 28 days in a calendar year. Moveable structures can also be placed and used on the land in relation to a temporary use. This could cover a wide range of ventures: food stalls, outdoor barbecues or catering vans could be parked on land as additional food outlets; marquees and gazebos could be erected as covered dining or event space; or kiosks could be placed to allow for temporary ticket sales or pop-up retail. But be aware of possible licensing considerations, as mentioned below.
  • Internal alterations – Generally internal alterations do not require planning permission (the main exception being where premises comprise or are within a listed building).

What is and isn't acceptable will, of course, depend on the circumstances of each business and its premises but there is a clear indication that the Scottish Government wants councils to take a practical and flexible approach, at least in the short-term.

This is hopefully welcome news for those looking to accommodate social distancing measures in order to be open for business when it is safe to do so.

Looking further ahead, planning applications may well need to be submitted for any more permanent changes. Before commencing work, it is worth asking your local planning authority for initial feedback on your proposals (there is always a risk that they don't support your plans, for whatever reason) and the likely timescales for receiving a decision.

It is possible, however, to implement some longer-term plans without the need to obtain planning permission:

Finally, it is worth noting that while flexibility has been encouraged in respect of planning controls to date there has not been a comparable relaxation of building standards regulations. Where alterations – short-term or longer-term - go beyond changes of a cosmetic nature or to operational practices, compliance with building regulations may well be required and advice from an architect or surveyor is recommended.

For further information on the planning considerations for reopening your business contact Victoria Lane.

Licensing Considerations

Licensed premises may wish to utilise car parks, garden areas and pavements adjacent to their premises as outdoor seating areas as restrictions are relaxed.

Many premises will already have outdoor seating areas included within the footprint of their Premises Licence and may not need any additional permissions but premises which do not currently have outside drinking areas, or premises that want to extend their outdoor drinking areas, will require to have occasional licences in place in order to be able to serve alcohol.

Occasional Licences are in effect for a maximum of two weeks at a time and a fee of £10 is payable per application, a series of applications can be submitted at one time.

A plan of the area to be licensed needs to accompany the application together with details of licensed hours, terms of access for Children and Young Persons, activities to be carried out in the area, any barriers/furniture to be used, details of the procedures to ensure social distancing and hygiene measures, details of toilet facilities including any procedures relating to social distancing and hygiene measures while customers are using the toilet facilities.

If tables and chairs are to be placed on the public footpath, additional permission may be needed under Section 59 of the Roads (Scotland) Act 1984 from the relevant local authority. Some local authorities issue annual permissions, while some will issue part year. Fees vary dependent on the local authority. Planning permission may also be required.

The Scottish Government has issued guidance (Coronavirus (COVID-19): Licensing (Scotland) Act 2005 section 142 - statutory guidance - https://www.gov.scot/publications/coronavirus-covid-19-licensing-scotland-act-2005-section-142---statutory-guidance/ and Coronavirus (COVID-19): tourism and hospitality sector guidance - https://www.gov.scot/publications/coronavirus-covid-19-tourism-and-hospitality-sector-guidance/) in which it expects Licensing Boards to take a pragmatic and flexible approach when making decisions and expects all applications to be considered sensitively with no unnecessary hurdles having to be overcome prior to the granting of an occasional licence. The requirements of the Licensing (Scotland) 2005 Act must still be adhered to and Licensing Boards should be flexible and pragmatic in ensuring the requirements are met.

We anticipate that there may be a significant number of applications for Occasional Licences. Any operator who considers that they have an outside area that is not currently licensed and would be suitable for use as an external drinking area should therefore submit an application to the relevant Licensing Board as soon as possible. Ordinarily the processing of Occasional Licences takes up to four weeks but it is hoped that in the current circumstances that Licensing Boards will be able to determine applications in a shorter period of time.