10 pm curfew and table service for certain premises take effect today

“The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020 so far as they relate to licensed premises, came into effect at 5 am this morning, the 24th of September. Amendments for limits on weddings, wedding receptions, funerals and significant event gatherings come in to force on 28 September 2020 and are not discussed below.

These regulations apply to England only.

10pm restriction.

From today, persons responsible for carrying on a ‘restricted business’ or providing a ‘restricted service’ must not carry on that business or service between 10pm and 5am every day. Those businesses and services include:

• Restaurants, including restaurants and dining rooms in hotels or members’ clubs
• Businesses providing food or drink prepared on the premises for immediate consumption off the premises (but this excludes supermarkets, convenient stores, corner shops, newsagents, pharmacists and petrol stations)
• Cafés, Including workplace canteens unless there is no practical alternative for staff at that workplace to obtain food.
• Bars, including bars in hotels or members’ clubs
• Pubs
• Social clubs
• Casinos
• Bowling alleys
• Cinemas
• Theatres
• Amusement arcades or other indoor leisure centres or facilities.
• Funfairs (indoors or outdoors), theme parks and adventure parks and activities.
• Bingo halls and concert halls.

Cinemas, theatres or concert halls can stay open beyond 22.00 to conclude a performance that has begun before 22.00, but are then obliged to shut once the performance has concluded.

Business that are required to close will still be able to provide off-sales services via drive through or delivery, by making deliveries in response to orders received through a website or other online communication; by telephone, including orders by text message, by post, or to a purchaser who collects the food or drink in a vehicle, and to whom the food or drink is passed without the purchaser or any other person leaving the vehicle.

Exceptions also exist for motorway service areas.

Table service

Subject to the 10pm closure requirement, certain businesses which serve alcohol for consumption on the premises may only sell food or drink for consumption on the premises if:-

(a) The food or drink is ordered by, and served to, a customer who is seated on the premises; and
(b) The person takes all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink on the premises.

This provision applies to restaurants, cafes, bars, pubs, social clubs, casinos, workplace canteens and ‘businesses providing food or drink prepared on the premises for immediate consumption off the premises’ (all as stated above), but it is subject to an important caveat, namely that the premises is serving alcohol for consumption on the premises.

If, therefore, you do not have an alcohol licence or you choose to stop serving alcohol for consumption on the premises, then the requirement for outright table service does not apply. However, you still have to take all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink on the premises.

The wording of the Regulations therefore means that most pubs and bars will be required to provide full table service and that customers will not be able to order or stand at the bar.

Our initial interpretation is that it is still possible to pay at the end of service, without remaining seated, if that is necessary.

The regulations go on to say: “(3) For the purposes of paragraphs (1) and (2), an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) or which customers of the business habitually use for consumption of food or drink served by the business is to be treated as part of the premises of that business.”

Even if you do not sell alcohol you will still need to comply with the requirement to take all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink.

Fast food and other casual dining outlets that serve alcohol may have to choose between ceasing to serve alcohol but thereby allowing their customers to order at the counter and, for example, dispense drinks directly from drink dispensers themselves, or having to commit to outright table service. In either case it will still be necessary for the operator to take all reasonable steps to ensure that the customer remains seated whilst consuming the food or drink on the premises.

Other premises that must close between 10pm and 5am are not subject to the “table service” requirements, namely bowling alleys, cinemas, theatres, amusement arcades/leisure centres, funfairs etc., bingo halls and concert halls. In other words, customers of these premises may order and consume food and be served alcohol as normal, subject of course to a suitable COVID-Secure risk assessment and compliance with any licence conditions.

Fines for breaching these parts of the regulations start at £1,000 for the first offence and increase thereafter to £10,000 for the fourth.

This is only an initial summary of the main provisions as they affect hospitality businesses. More commentary will follow.”