Legal: checking customers’ Covid-19 status

New regulations came into force on Wednesday 15 December requiring certain businesses in England to check the Covid-19 status of people attending their venues.

Ewen Macgregor, partner at UK law firm TLT, which writes Pub & Bar's legal page, has prepared some key guidance for the magazine's readers. 

Where all four of the following apply, it is a condition of entry that all customers must provide proof of a negative Covid-19 status:

• Your venue is open between 1am and 5am
• It serves alcohol after 1am
• It has a dancefloor (or a space for dancing)
• It provides music – whether live or recorded

What ‘proof’ is acceptable when undertaking checks?

Acceptable proof can be in the form of:

• Proof of vaccination – with the course of vaccinations completed at least 14 days prior to attendance
• Proof of a negative test within 48 hours of attendance
• Proof of clinical exemption or participation in a clinical trial (which needs to be proven via NHS letter or digital certification).

Do venues need to keep records of checks made?

You do not have to keep records of the checks being carried out, but management must keep a record of:

• The measures they propose to take to comply with the regulations
• How those measures will be implemented
• How they will bring these measures to customers’ attention

What if a venue usually closes at midnight, but has a temporary event notice (TEN) that extends the hours for the sale of alcohol beyond 1am?

The regulations do not exempt TENs. This means that if you would not normally be caught by the regulations, but fall into the rules with the benefit of a TEN across the Christmas period, you will be required to undertake Covid-19 checks from 1am onwards.

This will also apply to premises intending to use any extensions past 1am, such as New Year’s Eve, if the above conditions apply.

If a premises is open after 1am and is caught by the regulations, do operators only need to carry out the checks for customers arriving after 1am?

No. You will need to check the Covid-19 status of all customers on your premises after 1am, regardless of the time they arrive.

You can decide whether checks should be made at the time the venue opens or the time the rules apply from. It may be that you adopt different policies and procedures on different days of the week. The important thing is that you document the procedures you intend to put in place.

Do Covid-19 status checks have to be carried out by door staff?

No. Members of your team can carry out these checks (much in the same way as they would an age verification check). If you employ door staff, you can ask them to check the Covid-19 status of customers as part of their duties.

What is a dancefloor? Or a space for dancing?

There is no definition in the regulations as to what constitutes a dancefloor or a space for dancing. A common sense approach should be adopted when determining whether or not this applies. 

What will happen if operators do not comply the regulations?

We would hope that authorities would in the first instance speak to you and explain what their expectations are, allowing you time to put in place appropriate measures before taking any enforcement action.

There are, however, a variety of measures that local authorities can take to deal with premises that fall short of the requirements in the regulations. This ranges from a request to remedy any breaches, to forcing the premises to close for a period of up to a week, or a fine. Fines start at £500 and escalate to up to £10,000 for further breaches.

It is also an offence for individuals to use false evidence of Covid-19 status, for which they can be fined up to £10,000.

In all circumstances, we would advise that where your premises is caught by the regulations, you engage with your local licensing authority and police and tell them what procedures you’re putting in place.

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