Following the release of the Government’s Covid-19 Winter Plan, the hospitality sector in England has reopened under the three-tier system.

Links to the guidance for each tier can be found below:

We have also been asked a number of questions as to how the sector can lawfully operate, not least about the thorny issue as to what constitutes a “table meal”.

We have answered these below, offering advice based on the current regulations and available guidance.

For premises in Tier 2, what constitutes a “table meal”?

The recent intervention from a Government Minister that a scotch egg amounted to a table meal has caused confusion for many in the industry.

According to its definition in the regulations, a table meal is “a meal eaten by a person seated at a table or a counter or other structure which serves the purpose of a table”. As a result, many have found it hard to understand how a scotch egg on its own amounts to a table meal.

A table meal does not need to be a lavish three-course affair, as the legislation refers to “a main course” and not a starter, main course and pudding. In order to meet this definition, the scotch egg should really be accompanied by bread and butter, or chips, or salad. This also ties in with previous cases, albeit under a different framework.

The guidance also makes reference to “substantial meals”, although the word substantial is not used in the legislation, potentially adding to the confusion.

Put simply, to meet the legal requirement, establishments  should serve table meals that you might expect to be served as breakfast, the main lunchtime or main evening meal to stay compliant with the regulations. Bar snacks (a bag of crisps/peanuts or a bowl of olives) would not, for example, amount to a table meal.

For those premises that habitually offer a full menu, this should be a simple exercise of ensuring that either one main meal, or perhaps a minimum of two starters, are ordered per person.

If premises are serving food as a new venture to open in tier 2, their offering is more likely to be put under scrutiny. This is particularly the case if you are going to serve a minimal menu, or items like a scotch egg or sandwich with some accompanying sides. If in doubt, tell the local council enforcement team about your proposal and how you will be ensuring compliance to avoid being served with a Coronavirus Improvement Notice or facing other enforcement action. 

In all circumstances a common-sense approach should prevail.

Can my customers enjoy a drink before being served their meal, and after they have eaten their meal?

The short answer is yes.

The guidance envisages those premises required to serve alcohol with a table meal as operating akin to a restaurant.

There would be nothing to stop your customers enjoying a drink before their food arrives, and after their meal has finished. Your customers do not have to leave the moment they have finished their food. Equally, you should not continue to serve them drinks some hours after their meal has finished.

Again, a common-sense approach should be adopted. If you were to allow customers to carry on drinking hours after their meal has finished then, in our view, this would subject you to the possibility of enforcement action.

If customers come in, sit at a table and have a drink while considering the menu, and then at the time of ordering food say "actually we've changed our minds, we don't fancy anything", is the Publican in the wrong?

In Tier 2, alcohol can only be sold for consumption as a part of a table meal. In these circumstances you should ask your customers to leave.

Orders for the initial drink should be taken at the same time as the food is ordered to avoid the possibility of the above situation occurring. However, if a table orders a round of drinks but have clearly not touched the food served (i.e. they are effectively using the purchase of food as an ‘entry fee’ to come in and drink), you should refuse service as their intention is clear. To do otherwise would leave you open to the accusation of not acting as a restaurant.

Put simply, if a significant minority of your customers are coming in, ordering food and a drink and leaving without either waiting for the food or eating it, you are likely to face concerns (and possible enforcement action) that you are not complying with the regulations.

If I do not have a kitchen can customers bring in takeaways?

No, this is not permissible.

The guidance makes it very clear that customers should not be allowed to bring food onto your premises if it has been purchased elsewhere.

If you have no kitchen, there is no reason why you cannot set up a catering arrangement with a sister pub/venue to provide the food to you, so that you can fulfil the “table meal” requirement.

This arrangement should be recorded in your Covid-19 risk assessment including, where possible, how you will manage customer’s expectations in terms of how many drinks they can have before the food arrives. Again, more than one alcoholic drink prior to food arriving would leave you open to accusations that the food is effectively ancillary to drinking.  

My premises are situated in Tier 1 – do I have to serve a table meal if I am also selling alcohol?

Within Tier 1 you are not subject to the “table meal” requirements. However, all sales of food and drink must be ordered by, and served to, a customer seated at a table. The food and drink must be consumed while the customer remains seated, and you must take all reasonable steps to ensure that there is signage on tables/menus to remind customers of this.

Premises must still stop taking orders by 10pm and close to the public by 11pm.

My premises are in Tier 3 – can customers enter my premises to collect takeaways?

Between the hours of 5am and 11pm, customers can enter your premises to order and collect takeaway food and drink, including alcohol.

After 11pm and until 5am the following morning, any food and drink purchased for takeaways can only be purchased by way of home delivery, drive thru or collection (where the person collecting the food and drink does not enter your premises), so long as your premises licence permits it. Remember, selling hot food and hot drinks to take away requires a licence for serving late-night refreshment off the premises.

Can I provide entertainment/show sport on my TV?

For premises in Tiers 1 and 2, you can provide entertainment and show live sport on your TV. These must end at 11pm when your premises close.

If you are showing live sport, any steps that you are taking to mitigate against the airborne transmission of Covid-19 should be recorded in your Covid-19 Risk Assessment. Here are some examples:

Live sport on TV

  • Turn volume down – or off
  • Make sure that customers remain seated at all times
  • Shouting/chanting should not be permitted
  • For Tier 2 premises remember that any alcohol sold must be as part of a table meal – it would not, for example, be permissible for a customer to come in at 12 noon and have their lunch then, and carry on drinking for the start of a match that kicks off at 5.30pm

Live entertainment

  • Ensure audience are socially distanced
  • Consider having entertainers performing behind screens
  • For pub quizzes, position quizmasters behind a screen or consider pre-recording the questions
  • Avoid open mic nights unless participants bring their own microphones

I have heard that premises can stay open until 11pm – what time is last orders?

In tiers 1 and 2 your premises may remain open until 11pm.

Last orders for both food and drink MUST take place no later than 10pm.

I have a premises licence that allows me to serve alcohol but I have decided not to sell alcohol on my premises. Can customers order at the counter?

If you don’t intend to serve alcohol, while it’s good practice to  take all orders from customers seated at tables, it is permissible for your customers to queue and order at the counter, ensuring that COVID-secure measures are in place (social distancing/customers wearing masks as they move from counter to table, for example).

Any food and drink ordered at the counter MUST be consumed while the customer is seated at the table.

You must take all reasonable steps (for example putting signage on tables/menus or giving gentle verbal reminders to customers) that food and drink must be consumed while seated.

I have an outdoor marquee - is this treated as indoors or outdoors?

A place is indoors if it is “enclosed or substantially enclosed” (the same terms are used when constructing smoking shelters).                

For a marquee to be treated as outdoors, it must not be wholly enclosed or substantially enclosed, and therefore must be 50% open to air.

In practice, this means that it should have at least two sides completely uncovered.

If, during the course of a trading day, the weather means you need to close another side of the marquee then this would cease to become an outdoor space, and the relevant indoor regulations would apply.

We will be adding to these FAQs as issues arise.

Date published

04 December 2020

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