'Plan B' guidance for Late Night hospitality
Mark Wright
Experienced hospitality consultant/freelance executive offering operational and commercial support to SME businesses, as well as hospitality recruitment for executive, management & chef roles.
Yet again the Late Night hospitality sector finds itself on the brink of further legislation aimed at slowing the spread of COVID, in this case the Omicron variant. It is expected that the guidance laid out below will come into effect in England from 6am Wednesday 15th December 2021.
To help keep you up to speed I've summarised the key points below.
I've also produced a quick and easy-to-follow checklist to help supplement the information below. You'll find that at the end of this article.
Q: What do I have to action as the 'responsible person' for my venue?
Each venue will have a responsible person who must comply with a number of obligations relating to the requirement to use the NHS COVID Pass as a condition of entry. This person should check where responsibility for data protection lies in their organisation.
You are the responsible person for a nightclub, dancehall, or discotheque, or other venue open after 1am with alcohol, music and dancing, if you are the venue manager.
Q: Does my venue need to carry out checks on entry?
Venues and events where the NHS COVID Pass, or alternative proofs of COVID-19 status, must be used as a condition of entry are:
Q: What do I need to do?
Organisations must take reasonable steps to make sure that all visitors aged 18 or above show an NHS COVID Pass, or approved proof of vaccination, testing, or an exemption, to enter the venue or event.
Evidence of natural immunity must not be accepted as an alternative to proof of vaccination or testing.
Q: Do I need to test my Team?
COVID-19 status checks are not mandatory for workers, but organisations should take reasonable steps to make sure that all adults working or providing services (as an employee, contractor or volunteer) in customer-facing roles show evidence of one of the following:
Q: Are there any scenarios where I don't need to check on entry?
There are some situations where nightclubs, dance halls, discotheques and other late night dance venues do not have to use the NHS COVID Pass. These are:
Nightclubs, dancehalls and discotheques are required to check the COVID-19 status of visitors at all times, unless hosting an exempt event.
If you operate a venue in the category of other late night dance venue, you must take reasonable measures to make sure that all visitors who are present in your venue between the hours of 1am and 5am have the NHS COVID Pass (or other accepted evidence), even if they entered the premises before that time.
Venues can choose what measures to put in place, and whether checks should begin from either:
Whichever option is chosen, you must make sure you’ve taken reasonable steps to make sure that all visitors who are in the venue between the hours of 1am and 5am have the NHS COVID Pass (or other accepted evidence), even if they entered the premises before that time.
Q: How do I carry out a check?
In settings where it is mandatory to use COVID-19 status checks as a condition of entry, you are expected to take reasonable measures to ensure that all attendees aged 18 or above have the NHS COVID Pass (or approved international equivalent) or have valid proof that they have completed a negative PCR test or negative rapid lateral flow test within the past 48 hours.
Those relying on testing to prove their COVID-19 status are strongly advised to take tests as late as possible before attending the event, ideally within 12 hours, to strengthen the protection testing provides.
It is also strongly advised that workers aged 18 or above who come into contact with customers have the NHS COVID Pass (or approved international equivalent) or have valid proof that they have completed a negative PCR test or negative rapid lateral flow test within the past 48 hours
You should communicate these requirements clearly with your customers, so they know what to expect when visiting your venue. This could include notifying customers of the requirement to show their NHS COVID Pass on your promotional materials and website, informing those who make telephone enquiries or adding the information to tickets, as well as providing information on the steps required to comply with entry requirements.
As a responsible person of a venue or event, you must take reasonable measures to ensure that only attendees with the required NHS COVID Pass (or other accepted international evidence) or a negative test result enter your venue.
If you are checking passes using the NHS COVID Pass Verifier App, as recommended, you will be processing personal data and therefore you will have obligations as a data controller under data protection legislation. See the ‘Data protection’ section at the end of this page.
Q: How do I validate an NHS COVID Pass?
You should check for proof of COVID-19 status through use of the free NHS COVID Pass Verifier App wherever possible to ensure passes are valid and have not expired and reduce the possibility of fraud. This provides the most secure verification of an NHS COVID Pass and passes from the rest of the UK and 62 countries that are part of the EU gateway, by scanning the 2D barcodes. The NHS COVID Pass can also be visually checked, but to reduce fraud we recommend the use of the NHS COVID Pass Verifier App. Text or email proofs of a recent test should be visually checked.
You’ll find full details on how to use the NHS COVID Pass Verifier App on the NHS website.
The NHS COVID Pass Verifier app is recommended to check the NHS COVID Pass. If you choose to not use the Verifier App, you’ll need to ensure that attendees’ NHS COVID Passes are checked visually for an expiry date and a shimmer animation that confirms a Pass is live and not screenshotted. You should check the online NHS COVID Pass where possible but can also check the wallet (which does not have a shimmer animation).
Q: What if a guest isn't using the NHS COVID Pass?
Those not using the NHS COVID Pass and accessing settings by showing alternative proof of a negative PCR test or negative rapid lateral flow test taken within the past 48 hours must have reported their test result to NHS Test and Trace. They will then have received a text or email notification which should be checked as a condition of entry. A valid notification of a test result from NHS Test and Trace should include all of the following:
Q: What if an attending guest is from overseas?
Where attendees to your venue or event are international residents, you should accept certain vaccination proofs from other countries. If the vaccination proof is accepted at the UK border, you should accept it at your venue or event. For more information, read the guidance on approved COVID-19 vaccines and countries with approved proof of vaccination.
Q: Do I need to think about how I que for entry?
Event organisers, venues and businesses should consider where a queue may interact with the public and engage with the local authority, owner or operator of the public space in order to manage queuing arrangements safely and effectively.
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Q: Do I need to check everyone or can I spot check?
There are limited circumstances where it may not be reasonably possible for you to carry out COVID-19 status checks on all attendees at events where this is mandatory without endangering the safety of those attending the event or others. The overwhelming majority of events will check the COVID-19 status of all attendees.
Spot checks may be used in the following limited circumstances if it’s not reasonably possible to check proof of COVID-19 status for all attendees at these events:
1. The event is:
2. The majority of attendees are expected to arrive for a fixed start time, where entrants are likely to all arrive in a short space of time.
3. It is not possible to set up checkpoints away from the entry points, and carrying out a check on every person would lead to a crowd gathering outside the venue or event.
4. That crowd would either present a risk to the safety of the persons in the crowd, or to any other person, or provide a potential target for terrorist action – read more information on hospitality security considerations
In these circumstances, if it is not practical to check the NHS COVID Pass of all attendees, you must carry out an assessment of risk and determine the percentage of checks that can safely be carried out. The responsible person must submit this assessment of risk to apply to the relevant local authority at least 10 working days in advance of the event.
The local authority will either approve the measure, ask for alterations or reject the proposal thereby requiring the venue to conduct 100% checks. If the local authority replies less than 5 working days before your event then the spot check application will be treated as approved.
For events held between the 15 December and 31 December, event operators that meet the criteria and want to apply spot checks must submit an assessment of risk to their local authority. If the criteria are met and the submission made reasonable requests, spot checks can be used without local authority assessment.
Q: What do I do if people cannot demonstrate their COVID status?
If any of your adult attendees fails to produce adequate proof of their COVID-19 status you must not allow them to enter your event or venue. If anyone tries to breach entry to your event, without having proof of COVID-19 status, you should take the appropriate action to ensure the safety and security of all at the event.
If any of your adult, customer-facing, workers fails to provide adequate proof of COVID-19 status where this is advised, you are strongly advised to not allow them to work at your venue or event until they have provided this evidence.
Q: What happens if I don't carry out my legal obligations relating to checks on entry?
If you do not comply with your legal obligations in relation to carrying out mandatory COVID-19 status checks at your venue or event, local authorities can take enforcement action, including prosecution or issue of a fixed penalty notice (FPN).
There are various other enforcement tools that the local authority can use to ensure compliance. This includes issuing a Coronavirus Improvement Notice (CIN). This is often the first step that local authority enforcement officers use to require businesses to remedy unsafe practices. A CIN requires compliance by a date specified on the notice, which will be a minimum of 48 hours after issue. The date for compliance is determined by the local authority enforcement officer.
If you fail to comply with the CIN, your local authority can issue a Coronavirus Restriction Notice (CRN), which enables it to close all or part of your business, venue or event. This could also be used to restrict the number of attendees at your event. The notice will apply for 7 days. Following the 7 day period of application, the CRN can be withdrawn or allowed to expire if you’ve taken the necessary steps to remedy the unsafe practices identified. If the necessary steps have not been taken then a new CRN can be issued against the same business, venue or event.
Your local authority can alternatively use Coronavirus Immediate Restriction Notices (CIRN). This enables it to close the venue for an initial period of 48 hours. The local authority will be required to review the CIRN before it ends. It can be withdrawn or allowed to expire if you have taken the necessary remedial steps.
If necessary, a local authority could issue you with a CRN at the end of the 48 hours to close the venue for a further 7-day period. Alternatively, where it is concerned that the premises is causing a serious and imminent threat to public health, a direction can be issued under the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020, provided that the legal tests are met. Read more information on the No. 3 Regulations.
If you fail to comply with any notice it is an offence and can result in a prosecution or issue of a fixed penalty notice (FPN).
The fixed penalty for a first offence would be £1,000 (if paid within 14 days of the date of the notice, this can be reduced to £500), £2,000 for a second offence, £4,000 for a third offence and £10,000 for the fourth and any subsequent offences.
You can appeal a CIN, CRN or CIRN to the magistrates’ court. Your appeal must be made in accordance with the Magistrates’ Courts Act 1980 and be made within the period of 28 days from the day on which the notice was issued or the review date. You cannot appeal a FPN, but can challenge it by way of judicial review in the administrative court.
Q: What records do I need to keep?
As a responsible person, you must produce, and keep up to date, a statement setting out the measures you will introduce to ensure that you are meeting the requirements of carrying out mandatory COVID-19 status checks, and that you are making the public aware of these measures. This should explain, where applicable, your spot check approach, if you have prior agreement from the local authority.
You must also retain records containing the following information on implementing the requirements of carrying out mandatory COVID-19 status checks:
If you are holding an event in a venue that has a capacity greater than the thresholds, but you do not use the NHS COVID Pass because you are not anticipating the number of attendees to meet or exceed them, you will need to produce a statement explaining how you intend to stay under the thresholds.
You must maintain these records for 3 months from the date of the event or, for a venue, 3 months from the date to which the records refer. You must retain records of your general policy statement of measures to meet certification requirements for as long as the legislation on mandatory certification applies, and a further 3 months after it ceases to apply. Local authorities have powers to request these records or policy statements within 3 working days or as part of an inspection.
You must not retain information from within the NHS COVID Pass, such as an individual’s name or COVID-19 status for members of the public who attend your venue or event.
Q: What are my data protection responsibilities?
If you are responsible for a venue or event that requires mandatory COVID-19 status checks as a condition of entry, data protection legislation will apply when you are processing personal data. You can find further information about looking after your customers’ personal data when completing COVID-19 status checks on the website of the Information Commissioner’s Office as well as information about complying with UK data protection legislation when carrying out workplace testing.
Information about when the UK GDPR applies and on customer and employee consent can be found on its Vaccination and NHS COVID Pass checks page.
The ICO has also published specific information for nightclub businesses and organisers of large events.
You must also comply with the law when processing any special category health data. Further information can be found on the ICO website.
Further information on the appropriate lawful basis for checking people’s COVID-19 status can be found in its guidance in Vaccination and COVID pass checks.
When you use the Verifier App for the first time, you will be asked to accept the terms and conditions. Read the Verifier App user guide on the NHS website for more details.
If you use the NHS COVID Pass Verifier App to scan an attendee’s NHS COVID Pass, as recommended, you will be processing personal data and therefore you will have obligations as a data controller under data protection legislation. A limited visual check of an NHS COVID Pass is not subject to data protection regulations.
If your venue or event requires mandatory use of the NHS COVID Pass, you should communicate clearly with your customers, so they know what to expect when visiting your venue. This also includes how their data will be handled. Further information about privacy information can be found in the ICO’s Right to be informed page.
I hope you found this useful, and if you have any questions or would like any support around this topic please don't hesitate to get in touch.
See you at the bar.....
Mark