Is the tip for the waiter in the bar/restaurant going into a pot for his/her benefit? What should employers do with tips when they have control over them?

These questions and many more were answered last year in the Employment (Allocation of Tips) Act 2023 which amended the Employment Rights Act 1996.

Two million employees across our great hospitality sector are affected by this new legislation and this is now so important given that 80% of bills in bars and restaurants are now paid on debit cards with many establishments moving to cashless systems.

Very briefly the new 2023 Act provides the following:
(i) all tips gratuities over which the employer has control must be paid by the end of the following month without deductions
(ii) obligation to ensure fairness of arrangements for distribution among workers either via employer or independent tronc
(iii) a new code of practice from Secretary of State ensuring a fair distribution

It also ensures that employers have a written policy on the distribution of tips.

Along comes the new Bill and directs employers to consult with representatives of an independent trade union recognised by the employer in respect of workers who are likely to be affected by the policy, or representatives appointed or elected by those workers and having authority to receive information and to be consulted about the policy on behalf of those workers.

It appears that guidance issued by central government was not enough for this new government and now employers must involve the trades unions in crafting and commenting on their policies. There will also be a duty to make known to the employees any comments contained in the consultation on the policy.

I am getting a lot of calls from clients on many aspects of the new Bill affecting our sector so do let me know if you need any more detailed guidance.

New legislation on the way to compel licensees to stop “banter” in pubs and restaurants and other places of entertainment. Yes you read correctly!!

This is a very important piece of amending legislation just introduced by the Labour government this week as part of the new Employment Rights Bill 2024

The Bill seeks to amend the Equality Act 2010, which among other things already imposes a legal duty on employers (bar owners) to protect workers (bar staff and waiters) from harassment by other employees defined as “unwanted conduct relating to a protected characteristic” (i.e., age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.
 
 This amendment will expand that duty, rendering bosses additionally liable for harassment of their employees by members of the public that they come into contact with while doing their jobs. The bill actually seeks to extend third-party liability to every type of ‘unwanted conduct’ already prohibited by the Equality Act 2010, including – overheard conversations. In other words, if the bill becomes law, employers will have a duty to protect their workers from overhearing ‘upsetting’ remarks made not only by their colleagues, but by third parties as well!!

Are you going to need to employ “banter” police in your restaurants and bars?

The question arises as to what systems bar and pub owners are meant to have in place to prevent a customer expressing a political opinion and upsetting a member of staff? Bring on yet more guidance and red tape for our already embattled sector.

This can only present a yet further chilling effect on free speech in bars, pubs, clubs and restaurants etc as owners will need to constantly have an ear open to what customers are saying and intervene if it is felt that a private conversation is straying into territory about which a member of staff may feel uneasy and harassed. It may also put customers off going to such premises if they feel their conversations might be overheard and they could be asked to desist or leave as a result of what’s being said.

Employers could also face pre-emptive action from staff if there is no policy in place to deal with remarks made. (“No banter allowed” signs maybe?)

This is not an easy area of the law for premises with licences under the Licensing Act 2003 or the Gambling Act 2005  so please do give me a call or get in touch about the detail and possible consequences. I will keep you posted on developments as this very large Bill tracks its way through Parliament

Delighted to have been a part in securing this great licence for a wonderful event in Chiswick Park coming up next week. Do try and attend if you can and live nearby. Its all overseen by Tom Kerridge, super chef and features great food and drink as well as wonderful music this year from McFly and Ronan Keating. A great way of blending food and entertainment in a day or even over the weekend.

When I last reported that the Government did not intend to continue the regulatory easement of off sales after September 2023 there was a degree of consternation amongst operators in our great hospitality sector. However, I’m delighted to report that the Government has now conceded the points that we made to it on this issue in consultation and subsequently and has agreed that the temporary permission allowing off sales should be continued until 31st of March 2025.

It is also somewhat heartening to see the Home Office acknowledge within the text of the revised guidance that it is clearly more then labour shortages and the cost of living crisis which is affecting the bottom lines of many great restaurants and bars across the United Kingdom. These points were made during consultation in a submissions against the extension of the temporary permission but it is self evidently clear that if you lock down an entire economy and particularly an entire sector such as hospitality for many months it is highly likely that many of these businesses will either go to the wall [which many did] or will find it incredibly difficult to trade in a post lockdown environment. The Government cannot expect people to turn round businesses which have been deprived of the lifeblood of income for many months particular during an energy crisis and then carry on as if nothing had ever happened once the forced closures come to an end. There are countless businesses still reeling financially from the effects of the lockdowns which government imposed upon them and it is right that government now assist these businesses to bounce back. It is also to be hoped that the Government makes these proposals permanent as from March 2025 because it will take years for small restaurants and bars to recover.

I have attached the document to this post for you to read at your leisure. It was published on 22nd of September.  You can see the whole document here Alcohol licensing: guidance on temporary off-sales permissions – GOV.UK (www.gov.uk)

It should be remembered that the temporary extensions only have effect until 11:00 PM and that if you wish to have off sales after this time then a variation application will have to be made to the licencing authority in the usual way.

We are advising clients and other operators on the off sales provisions currently and if you have any issues which require resolution do get in touch through our contact page.

GREAT NEW PREMISES LICENCE SECURED IN THE HEART OF THE ISLINGTON CUMULATIVE IMPACT AREA WITH LATE HOURS

Middle of the week and time for a great night out? I simply must give all the guys at NORTHWOOD in the amazing new shopping mall a mention here. This outstandingly good venue has now been open for a week and all the staff are so enthusiastic about the new project.

The best sport’s viewing in the best facility with superb food.

They have secured permission for a great new terrace area as you can see. Special thanks are due to Islington licensing police team who were immensely constructive on this application notwithstanding it was in the stress area and to Islington licensing team and EHOs who all played their part in partnership working. A great example of how expert management with detailed policies in place can impress a licensing authority and secure a good licence. Lots of detailed planning from the start produces the right result.

It was a pleasure to be involved in this significant project from the outset and thanks also to Jonathan Phillips on the planning side on this one. More team working for a great result!

If you are an operator looking to set up a fantastic facility like this one in a difficult stress area do contact me and we stand ready to advise from the outset right up and including the licensing commitee hearing.

This is a fine example of standing your ground in the face of a planning authority’s insistence that documents be provided in support of a planning application which are out of all proportion to that application.

The client applied for planning permission to change the use of part of a substantial classic old building to tie in with a beautiful rooftop development. The use sought was multi functional including restaurant, bar, event space and exhibition and conference space. The planning authority took an excessive period of time to determine the application and were seeking detailed experts reports relating to transport. The reports sought were of an order of magnitude far greater than the application merited and would have related to the largest type of development possible. I resisted this and presented perfectly acceptable expert evidence which was rejected by the LPA. The matter was appealed to the Secretary of State who has agreed with us and found the evidence perfectly adequate and granted the appeal and therefore the application.

This paves the way for an exciting and edgy performance and entertainment space in the heart of a vibrant area of Hackney and in the centre of a stress area where the council would not normally grant such applications.

Its a lesson to stand firm and hold your ground when the LPA seek more information than is necessary and to have confidence that the evidence you place before them is satisfactory in terms of what the planning policies require.

I have been very proud to act for and represented the fantastic Maven Premium Sports Bars who have just secured, in the Westminster City Council licensing committee after a full day’s hearing, a magnificent premises licence for a great sports restaurant/bar. This is part of a £ billion development behind the iconic Piccadilly Lights in Piccadilly Circus and which also included three other applications for a classic pub, an amazing rooftop restaurant with breath-taking views of central London and a further restaurant on another floor. These were also granted.

This was not an easy application as you will all know given its location in the West End stress area where the Westminster policy is that there should be no new grants of licences in the area because of saturation with licensed premises.

The slow but determined progress to the grant began a year ago with the planning of the application and the meetings with the landlord and then with officers and police. The application itself was faced with opposition form the Soho Society, police and the licensing team but also had support. It also involved the proposed surrender of an existing premises licence for another unit in the building and very detailed experts report compiled by the crack team of Richard Vivian on acoustics and noise and Adrian Studd on crime and anti social behaviour. There was also a cooperative working relationship with the environmental health team at Westminster City Council and there was a lot in the licensing and the cumulative impact policies which needed to be addressed.

This will bring a world leading new revived building to the public along with four great licensed operations and will carry this location forward for the next half century at least.

I love this business because I get to work with so many great clients on such exciting and world leading projects. This is a great example of how it is possible to secure a premises licence in a very challenging area for Westminster.

Piccadilly Circus could get a new rooftop bar (timeout.com)

An update to all our great restaurants and bars with pavement licences. As I indicated in a previous post the pavement licensing regime is to be made permanent by virtue of the Levelling Up and Regeneration Bill 2023. This proposed legislation is slowly progressing through its parliamentary stages but its final stages will not be completed in time for the summer recess and so that Government has tabled an order extending the current temporary regime up to 30th September 2024 (as predicted!).

Secondly, there is a proposed amendment in the House of Lords by the excellent Anne McIntosh who has done so much work on this one, regarding agent of change and specifically seeking to introduce the principle into licensing law and applications. The “agent of change principle” means the principle requiring planning policies and decisions to ensure that new development can be integrated effectively with existing businesses and community facilities so that those businesses and facilities do not have unreasonable restrictions placed on them as a result of developments permitted after they were established. The proposals will amongst other things require developers building e.g residential accommodation near to EXISTING licensed premises to take steps to ensure that the new development is not affected by the existing bar/club. This will require the production of a noise impact assessment demonstrating that the new development will not be affected by noise from an existing venue with regulated entertainment.

A breath of fresh air after some of us have been arguing for this for many years and it is to be hoped that Anne’s proposal is accepted by Government. This may have assisted me in the Ministry of Sound matter several years ago when Southwark and the Mayor of London were required to determine a proposal for a large residential block right opposite to the iconic venue!

Is the tip for the waiter in the bar/restaurant going into a pot for his/her benefit? What should employers do with tips when they have control over them?

These questions and many more have now been answered in law with Parliament’s recent passing of the Employment (Allocation of Tips) Act 2023 which now amends the Employment Rights Act 1996.

Two million employees across our great hospitality sector are affected by this new legislation and this is now so important given that 80% of bills in bars and restaurants are now paid on debit cards with many establishments moving to cashless systems.

Very briefly the new Act provides the following:

(i) all tips gratuities over which the employer has control must be paid by the end of the following month without deductions

(ii) obligation to ensure fairness of arrangements for distribution among workers either via employer or independent tronc

(iii) a new code of practice from Secretary of State ensuring a fair distribution

There is the inevitable guidance to follow once the Act is brought into force by ministers but this is a landmark piece of legislation with all party support in the House and will ensure fairness for all staff and give confidence to customers that tips will now get to the employees.

If you need advice on the detail I am currently advising many clients on implementation so feel free to call or touch base via the contact address on the site.

In a great success for people power and what residents can achieve when they organise a proper campaign, the leading Premiership football club Chelsea FC has been compelled to withdraw two substantial applications for new premises licences to cover the concourse around the ground and erection of a huge tent within feet of residents premises which sought to have music and dancing and sale of alcohol until 01:00!!

I have been delighted to act for up to 350 residents in resisting two very shabby applications by the club which were ill thought through and submitted with scant regard to local opinion. After one hearing in front of the licensing committee at Hammersmith and Fulham and a late consultation meeting the club has determined not to proceed with the applications.

The residents organised a sensible campaign in this application to address noise nuisance, planning, public safety, crime and disorder and instructed experts to prepare reports compared to the club which had put little effort into its applications and were inviting the licensing committee to trust them on the basis of years of organising football matches and other events. This argument does not work in a leading licensing case like this. Leading football clubs should not take local residents for granted and in the cases on which I have acted for such clubs we have not done so.

If you are a leading FC and need advice on how to present a great application to licensing authorities do please give me a call at Keystone Law .