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Fri 26th Jun 2020 - Friday Opinion
Subjects: The perils of wriggle room, a shout-out for the cultural sector, employee challenges and latest unpicking of furlough, and to the pub on 4 July
Authors: Paul Chase, Philip Kolvin, Alastair Scott and Richard Hartley, and Adam Keary

The perils of wriggle room by Paul Chase 

So, on Tuesday (23 June), there we all were, waiting with baited-breath for the government’s guidance on reopening pubs, bars, and restaurants to be handed down from on-high. I gave up just before midnight and went to bed but awoke the following morning to discover, after an elephantine period of gestation, the guidance had finally been published. It contained good news, and bad news.

The good news is pubs, bars, and restaurants can open from 4 July. And it is good news the two-metre social distancing “rule” – that never was a rule, only guidance – has been reduced to one-metre provided other risk-mitigating measures are put in place. There is a long list of these contained in the guidance – including Perspex screens, table spacing, surface cleansing, one-way traffic systems and toilet queues.

The bad news is eating and drinking inside a premises should only be allowed when customers are seated at a table. But it is apparently okay to stand and drink outside; even on the pavement; even in the area regulated by Westminster Council – notorious as the “council that likes to say no”. And it is also bad news operators have to become data collectors by recording the names and contact details of people entering the pub. It’s as if politicians and civil servants think all pubs are eateries where nice middle-class families and well-behaved children sit at tables and are waited on; that all pubs are restaurants by a different name. 

And then there is the confusion between guidance and regulation. “Guidance” is just another word for advice, and like any advice you can choose to take it or not. Numerous lawyers have been making this point quite vociferously. Guidance is not law or regulation and cannot be enforced. Or can it? Firstly, we shall have to see how much of the guidance makes it into regulation, but in any event there is the Health and Safety at Work Act 1974, and the obligations that imposes on employers to ensure their premises are safe for employees, visiting contractors and any member of the public who it might be reasonable to assume could be affected by the operation of the business. And the guidance hints this will be the enforcing instrument – with visits either from the Health and Safety Executive or the local environmental health officer from the council. 

And here we enter the murky world of interpretation. It will be for the enforcing authority in the first instance to interpret what the law means and whether not conforming to guidance constitutes a breach of the employer’s obligations under health and safety law. Everything becomes an argument at that point, and a lot will depend on the reasonableness or otherwise of the officer visiting a premises. But premises can be served with improvement or enforcement notices, and ultimately closure orders.

“Gold plating” is another concern. If premises have to collect contact details from customers and the customer refuses, what should the operator do? Let them in, or say: “Sorry sir, while I can’t force you to provide personal information, it is a condition of entry that you do so.” If they let them in anyway, have they breached guidance/regulation? If they refuse them entry they’re acting as a door supervisor and require a Security Industry Authority licence to do this legally. Of all the restrictions the data collection one is the most absurd. The purpose is to enable NHS Track and Trace to contact people in the event of a local outbreak that might have started in the pub. But consider this – if 70% to 80% of cases of covid-19 are asymptomatic, as some research suggest, or even if it is only 40%, which is what the World Health Organisation claims, then how can any form of track-and-trace possibly work?

We can only hope common sense will prevail and enforcement authorities will have due regard for operators that are doing their best to comply with guidance and keep the public safe. But common sense isn’t that common. The wriggle room high level and perhaps vague guidance gives to operators also creates wriggle room for enforcement authorities. Some local councils are taking a progressive and helpful stance – Liverpool City Council is an excellent example of this – providing a £4,000 grant for outside furniture and waving pavement licence fees. I suspect its enforcement will be equally as helpful. And this is where local political leadership is key. Where local politicians recognise the importance of the evening economy and want to help, enforcement will follow. And vice-versa. Wriggle room can work both ways.
Paul Chase is director of Chase Consultancy and a leading industry commentator on alcohol and health

A shout-out for the cultural sector by Philip Kolvin 

Among the 9,817 words of the government’s guidance for pubs and bars, 23 resemble a casual, drive-by shooting: “At this time, venues should not permit live performances, including drama, comedy and music, to take place in front of a live audience.” For the cultural sector, which is interwoven with the hospitality sector to the point of symbiosis, these words hang heavy, uttered without explanation, without reasoning, without objective justification, just heard like a gun-shot in the night.

The source of this stricture is unclear. Reputedly, it emanates from Public Health England, which has admittedly been under pressure to become a human shield for the government’s political decision to turn two metres into one. But understanding the source of a rule is not the same as understanding its rationale. 

The government website explains live performances carry “an increased risk of transmission”, as might “patrons needing to raise their voices to be heard over background music”. For good measure it adds: “There may be an additional risk of infection in environments where you or others are singing, chanting, shouting or conversing loudly.” The barrister in me sniffs out a thin argument as a werewolf senses blood: “Increased over what, Mr Civil Servant? And are you stopping pubs playing recorded background music? So why prevent live background music? And isn’t ‘may’ not just a limp admission that you don’t know?” Actually I am not like that at all, I exaggerate for effect.

But while the government blusters, the industry suffers. The Music Venue Trust estimates 93% of its members’ venues won’t survive until the autumn. In a study for the Cultural Industries Federation, Oxford Economics predicted a loss of 406,000 jobs this year, with £3bn lost in the music sector alone. In the absence of national leadership, it is unsurprising to see the industry trying to take matters into their own hands, with Festival Republic’s Melvin Benn going public with his Full Capacity Plan.

And the science linking viral transmission with live performance is remarkably thin, with the debate centring on the transmission of aerosol. One recent study from the Department of Otolaryngology at Iowa University concluded, for wind players, the risks could not be established and players should make their own judgments based on risk tolerance, which is not a practical solution for publicans who now have to manage their own front lines so as to protect their workers and customers. In Berlin, the leading orchestras commissioned guidance from epidemiological researchers, who found even wind instruments didn’t project droplets very far, and suggested distancing of 1.5 metres, although the research has been criticised for not focusing on aerosols, which apparently hang around for longer. So the experimental research of a fluid mechanics expert professor Christian Kähler of the Military University, Munich, which investigated droplets and aerosols is potentially important, for it demonstrates singers might create risk by singing closely together, but are not responsible for a dangerous expulsion of any kind of fluid. 

The absence of good evidence is a double-edged sword, simultaneously supporting a relaxation of restrictions and a precautionary approach. Advocates of the former will note the government guidance about live performance is just that – guidance. It is not the law. It creates no criminal liabilities. That means a publican could risk assess a live performance and conclude, with appropriate mitigation, it creates no additional risk at all. If everyone is socially distanced, would a single pianist tip the balance, or a singer behind a Perspex screen?

But another corollary of the hole where leadership should be is, as research shows, most of the public does not trust the government on this anyway. The public making its own decisions. And right now, it is not ready to return to live gigs. A Music Venue Trust poll of almost 30,000 people showed only 36% think it would be safe to attend a show. A pub that decided to depart from the guidelines on musical performance, even on the basis of good scientific advice, may not see a financial return but would be risking its reputation.

That brings me finally to support. The German government has pledged €1bn to support arts establishments emerging from the crisis. France’s support fund is seven times that. Against that Britain’s zero seems a bit on the light side. 

British culture is one of our greatest employers, leading exports, source of soft power and prestige, and is the soul of our nation. Back to those 23 devastating little words. The government should do better.
Philip Kolvin is a licensing barrister and an Associate Fellow at Westminster University’s Centre for Law, Society and Popular Culture

Employee challenges and latest unpicking of furlough by Alastair Scott and Richard Hartley

Following on from the announcement on Tuesday (23 June) pubs, restaurants and hotels can reopen with a reduced social distancing of “one metre-plus”, we are now on a mission to get everything in place in time for 4 July. Most of us are ahead as the date had been widely anticipated, but there is still a lot to do.

One of the biggest challenges we will face is getting our teams prepared for the new normal. Most have been furloughed and therefore will have had more than three months off work. Some have been prepared for the return and will be excited about it, but others are not. 

Returning to work
A while back we started talking to our teams about the return to work and had a selection of mixed responses. Some are keen, although cautious about how our businesses will operate under new guidelines. Some would like to remain furloughed. Of these there are some genuine requirements (ie childcare and shielding), some worried about returning to the workplace and some who I fear are saying the latter but in truth have gotten used to earning while not working. Some of our overseas team felt the natural pull to be close to loved ones so returned to their countries and have decided to stay there. Of those team members able to return we also need to consider which of them would normally travel to work using public transport – not only for their safety but also for the additional risk it brings into the business for the rest of the team and our customers.

We now have an understanding of our staff availability. We’ve also forecasted our sales based on our best assumptions so it’s time to start to pull our rotas together. We are inclined to use our best team members but need to be fair and also consider what the ideal shift length is for an individual returning to work. We believe a five-hour shift is optimal to get the most out of a team member without overexerting them but sometimes this is not practicable. We would also like to try and keep our teams in operating bubbles to ensure they are consistently working with the same people so if there is a requirement to isolate we don’t lose the whole team.

We have also had to debate what to do if a team member refuses a shift. Can we insist? Do we remove them from the furlough scheme? These are some of the issues we are starting to have to understand and deal with, and of course we don’t have much time to do it because we need to train and get open. 

We are viewing this as an opportunity to have the best trained team we can. Our teams have been using the furlough period to make sure their online training is up to date. We had already started work on how the offer will vary and what refresher training our teams will require. When we started to break down all the activities that require refresher training, we quickly realised there is a lot of ground to cover to ensure everyone is at the standard we want them to be.

We also need to train the team on all of the measures we have put in place to ensure we have a covid-19 safe environment for our customers and our team. There is a 41-page guide from government we have had to digest and implement those requirements that are applicable to our business. We also plan to learn a lot in the first few days of operating that will no doubt mean we will require tweaks to how we operate. 

Keeping everyone safe and what if…
We are putting the ownership of personal safety on to our staff but making very clear of what our expectations are. They are all required to complete a simple health questionnaire each day they are expected to come to work that covers the key covid-19 symptoms. If anyone cannot come to work we have plans in place to arrange cover.

The worst situation for us would be if any one of our team were to get covid-19. Primarily our thoughts would be with them, but we also have the wider team and our customers to consider. There would be a requirement for all of the team they have been working with to self-isolate (hence we are looking at the operating bubbles) and we would have the unenviable task of contacting the customers that might be infected. This situation also requires us to look at our staffing contingency.

It’s going to be a challenge to say the least, but we have been preparing for it for the past three months and feel as ready as we can be.

Flexible furlough
From Wednesday (1 July) individuals can return to work, and organisations can claim the furlough grant for hours they would have usually worked but have not. To be eligible they must have previously been furloughed for three consecutive weeks between 1 March and 30 June. 

When understanding an employee’s usual hours you should use contracted hours for anyone that has them in place. If an employee does not have contracted hours (ie zero-hours staff) then you should use their usual hours, which is a 52-week average (prior to the start of furlough) or comparable hours from the same period of time last year, whichever is the higher. If an employee has less than a year’s service then it is their average hours prior to furlough.

As an employer you then pay your staff for the hours they work and claim the grant for any hours that are left from their usual hours. As this is done on an hourly basis you will need to calculate an effective hourly rate for anyone that is not paid hourly (ie salary, shift, etc).

The amount an employee receives for the period of time they are furloughed does not change until the end of October, albeit at a pro-rata level based on how much they work. The amount an employer can claim in July remains at 80% of usual pay (capped at £2,500) plus any associated National Insurance (NI) and pension contributions. In August they can no longer claim for NI and pension, in September this reduces to 70% of usual pay and then in October to 60%.

Training while furloughed
Employees are able to train while furloughed so long as they do not provide a service for or generate income for their organisation. For the period of time they are training they are required to be topped up National Minimum Wage/National Living Wage if their effective hourly pay on furlough is below this.

This covers all online, refresher and covid-19 training and anything else that does not contravene the government statement. It will also continue through to the end of October, which could be very useful should guidelines change and further training be required.

How to handle the challenges
Flexible furlough and training while on furlough require an amount of detailed record keeping ensuring you pay your staff accurately and can submit an accurate claim. We recommend communicating with your payroll provider regularly and in advance to ensure you know what information they require and when they will require it.

Understanding staff health and availability is critical. You need to know as soon as possible that someone is not able to come to work and have your back-up plan ready to launch. We have enabled health questionnaires through our S4labour app and have also introduced shift swapping functionality for our customers. They are part of a wider portfolio of measures we have put in place to help navigate the challenges. We’ve been impressed with a number of initiatives organisations and suppliers have introduced to help get through the pandemic but most of all how, as an industry, we have worked together. Long may this continue.
Alastair Scott owns Malvern Inns as well as the labour management system – S4labour, while Richard Hartley is chief product officer at S4labour
S4labour is a Propel BeatTheVirus campaign member

To the pub on 4 July by Adam Keary

The date we have all been waiting for – 4 July – when the on-trade can finally open – in one form or another. While we’re all incredibly excited to get back to the industry we love, there’s a lot to do between now and next week – for operators of course, but also for all of the many suppliers that feed into them. We’re all in this together and therefore it’s essential we all prepare in advance and do what we can to best support our beloved industry in getting back up and running.

Now we have 4 July set and the conditions confirmed as “one metre-plus” social distancing, the government needs to resolve the issue of rent so operators can know if they have the liquidity to survive. We need to stare into our crystal ball to look at consumer socialising and purchasing habits. However, our hard truth is these are at best predictions even with social distancing reduced, as there’s never been a situation like it. With all of this in mind, it’s hard for any of us to plan. We won’t know what the customer base will be like until the doors have reopened. We’re optimistic consumers will be eager to return to some kind of normality. Our business insights predict within the first month of opening, 43% of customers will return to their pubs, with future intent higher still.

Quality brewers need to make their decisions at least four weeks ahead of the trade, to allow for “lagering”. So from a brewer’s perspective, it all comes down to confidence. How confident are we in the operators desire and ability to return, in the one metre-plus restrictions being workable, and in what the new operator models will look like. There’s no doubt the quantities and product selections will look very different from pre-covid offerings. For example, I’d expect many pubs will be reducing their number of beer lines to reduce the risk of even more beer going to waste. Of course that has a huge impact on brewers because if you’re not on that draught shortlist, you’re getting 0% of that previous income. Likewise, if breweries are being risk-averse and aren’t producing enough beer to fulfil customers, then pubs are going to go elsewhere and stock a different beer.

At Camden, we’ve been brewing beer over the past few weeks in preparation to support the on-trade as best we can, so we can add to the confidence rather than detract from it. We’ve made a decision to see the glass half full (of beer hopefully), despite adding a few grey hairs, because we believe we will define our own destiny. With 70 million pints already going to waste, it’s a huge risk to continue to produce beer without being able to guarantee its sales. Our outlook though is if you take the pessimistic view, you’re limiting what you can achieve in this situation, but if you stay positive there’s the potential to grow your on-trade portfolio and customer base, and ultimately, support our customers with supply.

To help support the industry and celebrate the reopening, this week we launched our key initiative that we’re calling “To The Pub”. We’ve brewed a double dry hopped American Pale Ale, which we’ll be giving to participating pub partners for free when they purchase two kegs of Hells, with the aim of helping pubs make a higher margin and get more cash into their tills for when they reopen. But before pubs officially reopen, we have launched To The Pub in a 500ml can on our web shop, and selected retailers from July. All proceeds from these cans will go to supporting pubs. This is the first genuine through the channel campaign for Camden and we’re so excited to be able to do so to support the hospitality industry get back on its feet. 

I also anticipate the fulfilment process will need to adapt due to the current situation. Historically, getting beer to market takes a bit of time, however the next few months are going to require brewers, wholesalers and operators to all be much more agile and fast-moving. It is also down to the brewers to make sure these flexible processes are in place to satisfy on-trade customers. Once reopened, pubs & RTM’s will need to be incredibly quick at adapting to consumer demand so brewers will need to support them in this way. 

Once pubs are open, they’re also going to need to make decisions in terms of what products are being stocked. Opting for bottles or cans is much lower risk than kegs as once you’ve opened a keg you have to sell it pretty quickly, within about three days of opening. But people miss the pub and being able to get a fresh draught pint. In my opinion, now is not the time to be cautious and dilute the very reasons that make on-trade experiences amazing – the people want pints of draught beer and it’s important that’s what they get. We’re all looking forward to the pubs being open again next Saturday, whether we plan on visiting them on the day of opening or a few weeks down the line, but collectively we need to make sure pubs and bars get the support they need to get back on their feet.
Adam Keary is managing director of Camden Town Brewery

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