Latest regulatory updates

The new Digital Markets, Competition and Consumers Bill has reached the Committee stage in the House of Lords, meaning it should soon achieve Royal Assent and become law.

While this is a very large and wide-ranging Bill, there are a couple of sections that tourism businesses need to be aware of, as the Bill updates and strengthens UK consumer protection law.

Part 3 will enable courts to impose monetary penalties on traders who breach consumer laws and provide the Competition and Markets Authority (CMA) with new powers to investigate and take enforcement action, including imposing monetary penalties on businesses that do not comply with consumer protection laws or CMA directions.

Part 4 will revoke the current Consumer Protection from Unfair Trading Regulations 2008 (CPRs), which are EU based and, essentially, re-establish the protections of the CPRs into this new Act.

Importantly, the Government is taking this opportunity to amend and add to the protections currently provided by the CPRs, as well creating a new power to make new regulations that could add further protections in future. 

In terms of the new consumer protections that will be introduced with the passing of this new Bill, there are two that tourism businesses need to be aware of and take action to ensure you are compliant.

1. Banning fake reviews

One of the main additions to the list of banned practices being transferred over to the new legislation is a ban on fake reviews. This means that websites such as TripAdvisor, Hotels.com or Booking.com will be accountable for any fake reviews posted on their platform. However, it also means that businesses that host reviews on their own websites must also put measures in place to ensure that the reviews are genuine.

Over the next few of months, the CMA will be developing and publishing new guidance on the processes business will need to put in place to prevent and remove fake reviews. In the meantime, you should review any existing reviews on your website and ensure that these reviews can be proven to be genuine.

2. Restricting drip feeding of prices

A second addition to the list of banned practices will be ‘Drip Pricing’. This is the practice of showing customers an initial price for a service or goods and then adding further fees or charges during the purchase process, so that the final price the customer pays bears little resemblance to the initial price promoted.

Research by Government shows that 56% of businesses in the hospitality sector undertake ‘Drip Feeding’. The Government deems some drip-feeding practices to be reasonable - for example, when customers add optional extras to their initial purchase such as adding a welcome pack when booking a self-catering cottage or an animal feeding experience when visiting a zoo. These will remain legal.

However, the new legislation will ban mandatory additional charges that consumers can’t avoid paying during the purchase process. This could include charges such as cleaning fees when staying in self-catering properties or booking charges when buying tickets to an attraction or theatre show.

Businesses will have to include all charges that consumers cannot avoid in headline prices so that it is possible for the customer to purchase the product or service for the advertised headline price.

While it will take time for these new provisions to come into effect, you should take this opportunity to review your pricing and purchasing process now to make sure that any mandatory charges are included in headline prices.

The Home Office has published updated guidance for employers on how to fulfil their legal requirement to check that potential employees have the right to work in the UK.

Rather than introducing significant changes, this new guidance essentially clarifies a number of issues and reminds employers that the temporary rules on checks that were introduced as a result of the Covid-19 pandemic ended on 30 September 2022.

The Right to Work checks that all employers are required to undertake can be summarised as:

1. Obtain

You are required to obtain original copies of a document(s) that show that the person has the right to work in the UK. The documents required are listed in the guidance and vary dependent of the person’s circumstances and whether they have a permanent right or a time-limited right to work in the UK

2. Check

You are required to check that the document(s) that you have been provided are not fakes, are current, relate to the person being employed, and have been illegally altered.

3. Copy

You must make a clear copy of the document(s) and file these safely for possible future inspection to be able to prove that you fulfilled your legal requirement to check an employee’s right to work.

For most UK nationals, the easiest way to fulfil these requirements is to have them provide a valid UK passport.

For overseas nationals, including both EEA and non-nationals, there are two ways to check a person’s right to work status. The simplest way is to use the Home Office’s Right to Work Checking Service. This service enables people to create a personal account on the Home Office website that contains the details of their immigration status and right to work in the UK. Once the account is established, the person is issued with a ‘Right to Work Share Code’ which they can they give to potential employers.

Employers can then easily verify the person’s right to work in the UK by entering this Share Code and the person’s date of birth on the Home Office portal and accessing their online account.

However, the Right to Work Checking Scheme is voluntary. This means that overseas nationals are not required to create an account and share this with you. Similarly, if a potential employee provides you with their share code, you are not required to use this to check whether the person is legally entitled to work in the UK and can undertake your own manual check instead.

This updated guidance provides detailed information on how to do this. The main changes to the guidance are associated with:

• The use of Identity Document Validation Technology (IDVT) and Identity Service Providers (IDSPs) to undertake Right to Work checks;

• Confirmation that Re-Admission to the UK (RUK) endorsements are an acceptable document for Right to Work checks;

• Changes to enable some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or Administrative Review to prove their right to work using the Home Office online checking service;

• Information on sponsored work and student categories;

• Information on short-dated Biometric Residence Permits (BRPs);

• Information on the ‘Employment of Ukraine nationals’.

Read the guidance now.

One of the most confusing aspects of running a tourism business is navigating copyright licensing requirements associated with playing music. 

Unlike in a private residence, playing music over a PA system or enabling customers to play music via a provided device (for example a TV or radio) in a commercial premises requires an operator to pay a royalty to the copyright owners of the music. This is because the improved ambiance and service provided to customers (and staff) are seen to be of commercial benefit to the operator.

There are two notable exceptions from the need for licensing:

1. TVs that only broadcast 24 hour news programmes

2. Devices such as Alexa and Sonos that connect to the WiFi, unless you have a music subscription which you allows your customers/staff to access music).

There are two organisations that collect the royalties for the copyright owners – PRS and PPL. PRS represents the composers and publishers of the music, while PPL represents the artist and record company that produce the recording of the music. Each collects royalties through the issuing of a licence to businesses and they work together to so that businesses can pay both sets of royalties through a single payment called ‘TheMusicLicence’.

While PRS and PPL are able to demand that all businesses, no matter how small, pay for a licence, they have long operated a discretionary exemption policy for some micro-operators. However, this has not been widely advertised and the eligibility for the exemption varied between PRS and PPL.

Recently, new eligibility criteria have been agreed with both PRS and PPL which mean that most self-catering operators and very small B&B operators will be exempt from the need for music copyright licences.

To be exempt a business must meet all of the following criteria:

For self-catering properties:

• The accommodation must consist of three self-catering units or fewer (the size of the property and number of bedrooms does not matter – a small yurt with one bed and a manor house with 12 bedrooms are both deemed to be one unit);

• The premises is the sole holiday accommodation business operated or owned by the proprietors. All the units need to be on the one site, such as outbuildings on a farm. If you have self-catering cottages in different locations, then you will not be eligible for the exemption;

• Facilities are only available to resident guests (this means that there are no paying day visitors who might, for example, use a pool complex on the premises).

For B&B properties:

• The accommodation must consist of three guest bedrooms or fewer (bedrooms used by the operator and their family are not included);

• The premises is the sole holiday accommodation business operated or owned by the proprietors (the operator can only have one B&B and cannot have a separate business such as a self-catering cottage);

• Facilities are only available to resident guests (the operator cannot have paying day visitors who might, for example, have an evening meal in the dining room).

It is not unknown for operators to receive letters or phone calls from people collecting licencing fees for PRS and PPL demanding payment even though they are exempt. It is therefore important to know the exemptions and be able to demonstrate that you comply with the exemption requirements.

In a previous update, one of the issues I highlighted was the Government announcement of an extension of the ban on single-use plastics. The original ban on certain single-use plastics was introduced in 2020, and applied to three items:

• Plastic stirrers used for drinks such as coffee and tea;

• The provision of plastic cotton buds to customers;

• The display and provision of plastic straws to customers (unless they specifically ask for one).

At the time of the ban, the Government stated that this was the first step in reducing plastic waste and that more items would be added to the list in future, following consultation. In January 2023 it was confirmed that the ban would be extended to include single-use plastic plates, cutlery and polystyrene trays.

Further details have now been confirmed and the ban on the supply of these items will come into effect on 1 October 2023.

The items that will be banned are:

1. Single-use plastic plates, trays and bowls

This includes any item, regardless of the type of plastic (including recycled, compostable and biodegradable plastics) or how much plastic the item contains. For example, if the item is a paper plate with a plastic film to stop liquid penetrating the paper, it will still be banned.

There are two exceptions to this ban:

• Business-to-business sales. If you are supplying another business and not the end consumer, the use of these items is still permitted.

• Packaged food. This is food that is either pre-packaged or packaged at the point of sale, such as a plate filled at the counter of a takeaway.

2. Single-use plastic cutlery

Single-use plastic cutlery includes any item used to consume food, so it includes sporks and chopsticks.

3. Balloon sticks

These are the plastic sticks that attach to the nozzle of a balloon to enable children to carry the balloon.

4. Ready-to-consume food and drink in polystyrene containers

This includes polystyrene boxes for takeaway food (such as fish and chips and burgers), trays provided for food at food stalls, and polystyrene cups used to serve tea, coffee and soup.

There is, however, an exemption for providing food or drink in a polystyrene container if the item needs further preparation before it is consumed. So, for example, raw meat can be provided on a polystyrene tray because it needs to be cooked, and a cup containing coffee granules and sugar can be provided because it needs hot water to be added before it can be consumed.

The ban will be enforced by Local Authority inspectors who will have the power to inspect premises, obtain samples of the items in which the food and drink are being provided, and impose fines for non-compliance. Customers will be able to complain about non-compliance to Trading Standards.

The Home Office has published new guidance – A guide to making your small paying-guest-accommodation safe from fire – for small accommodation businesses (defined as those that accommodate 10 or fewer guests and where the accommodation is located no higher than the first floor of the building).

The guide, which fully replaces the previous Do you have paying guests? publication, looks at what these businesses need to do to fulfil their legal obligations under the Fire Safety Order 2005, including detailed information on how to undertake a Fire Safety Risk Assessment and what mitigation measures are appropriate in different accommodation types.

The new guidance comes into force on 1 October 2023.

One of the useful additions in the new guide is a series of schematics related to different accommodation types and layouts, which show you where you should be placing fire monitors and alarms.

In reading the new guidance, the most important thing to remember is that the underlying legislation – the Fire Safety Order 2005 – has not fundamentally changed. Therefore, you still need to go through the same process to fulfil your legal responsibilities:

1. Undertake a Fire Safety Risk Assessment that identifies fire hazards and people at risk.

2. Install equipment and develop systems for mitigating identified risks.

3. Provide instructions and appropriate training for staff.

4. Keep your fire risk assessment under review.

If you have a good understanding of your current responsibilities and this process for fulfilling them, the new guidance simply builds on this. For the most part, the guidance does not say that you MUST undertake certain actions or install specific equipment to ensure that you are complying with the legislation. Rather, like the previous guidance, it makes recommendations, but still leaves the final decision to the operator.

However, because this new guidance is much more detailed, is very important to note that if you decide not to implement any of the recommendations, you must have a very good reason for not doing so, as Article 50 of the Fire Safety Order 2005 contains a legal imperative for you to follow the guidance:

‘(1A) Where in any proceedings it is alleged that a person has contravened a provision of articles 8 to 22 or of regulations made under article 24 in relation to a relevant building (or part of the building):

(a) Proof of a failure to comply with any applicable risk based guidance may be relied on as tending to establish that there was such a contravention, and

(b) Proof of compliance with any applicable risk based guidance may be relied on as tending to establish that there was no such contravention.’

In short, if you end up in court and are shown not to have complied with the guidance, if you do not have a very strong justification for this non-compliance (cost is not a valid reason), the presumption could be that you have broken the law.

The main changes in the new guidance

With that in mind, these are the main changes in the new guidance that you need to be aware of and incorporate into your fire safety management practices from 1 October 2023:

1. Recording Fire Risk Assessments

The most important change in the new guidance is that you MUST record your Fire Risk Assessment. Previously you only had to record the assessment if you had five or more staff. VisitEngland has always recommended that you record your Fire Risk Assessment in order to prove that you have fulfilled your legal responsibilities, but doing this is now mandatory.

2. Undertaking electrical inspections

Previous guidance recommended checking electrical equipment but did not mention the electrical system in your premises. The new guidance states that your electrical system (that is, the distribution board and wiring of the property) should be subject to inspection and tested at least once every five years. In addition, for self-catering properties, all appliances should be visually checked between lettings and in bed and breakfasts, there should be periodic in-house service and testing in accordance with the IET Code of Practice for In-Service Inspection and Testing of Electrical Equipment.

3. Heating system inspections

The new guidance states that heating and hot water systems should be inspected annually by a qualified contractor to ensure they are maintained in good condition. Previously, this requirement applied to just gas systems (your annual Gas Safe inspection), but it is now extended to all heating and hot water systems.

4. Carbon Monoxide detectors

Any property with a gas appliance, fire or wood burner should have a carbon monoxide detector installed. This requirement was missing from the previous guidance.

5. Sweeping chimneys and flues

Any property with a chimney or flue needs to have it swept at least annually. Again, this was missing from the previous guidance.

6. Candles

The new guidance states that operators should not provide candles, tea lights or ethanol burners for use by guests, and there should be a policy in place prohibiting their use. This is important as many operators use candles as decorative features or supply tealights or tealight holders.

7. Inner rooms

Inner rooms (which are rooms where the only escape route is through another room) should not be used for sleeping accommodation unless the rooms are on the ground floor and the rooms have direct access to a door or ‘escape window’ that can be used by the occupants to reach a place of safety clear of the accommodation. Escape windows for rooms on the first floor are not considered a safe means of escape for paying guests.

This will impact many older buildings and cottages where an upstairs bedroom is accessed via another bedroom, and operators are advised to contact a fire safety expert to determine what should be done to ensure the safety of people using an inner room.

8. Emergency escape lighting

While the need to provide emergency escape lighting was included in the previous guidance, the new guidance provides much more detail on what is considered to be appropriate for different-sized premises.

9. Fire detectors and alarms

The new guidance takes into account the revised grading system for fire detection and alarm systems that was introduced in 2021. The guidance recommends the installation of a D1 system which consists of one or more mains-powered detectors, each with a tamper‑proof standby supply consisting of a battery or batteries. Section 7 of the guidance provides information on the number, type and placement of detectors and alarms for such a system in a variety of accommodation types.

10. Regular checks

The new guidance provides a list of how often various fire prevention and detection measures should be checked. This includes daily checks that escape routes are clear (for staffed premises), weekly tests of detection and alarm systems, six monthly services of detection and alarm systems by a competent person, and annual checks on emergency lighting systems. It is important to note that all checks and testing should be recorded.

11. Examples of recommended fire protection measures in different layouts

One of the most helpful changes in the new guidance is ‘Section 7 – examples of common layouts and recommendations on fire protection measures’. This section provides four different accommodation types – from a small studio flat through to a two storey house – and discusses which fire prevention and detection systems are appropriate in each situation.

If you base your fire approach to fire safety on the example that is most similar to your property, then it is likely that you are complying with your responsibilities under the Fire Safety Order.

12. Revised Fire Risk Assessments template

The guidance provides you with a revised and updated Fire Risk Assessment template for you to use, which can also be downloaded from the Business Advice Hub.

Fire safety guidance for larger properties

If you have a property that accommodates more than 10 people, or your premises has sleeping accommodation above the first floor, then this guidance does not apply. Instead, the relevant guidance is Fire Safety Risk Assessment: Sleeping Accommodation.

This guidance has essentially the same format as other fire safety guidance in that it provides information on how to undertake a fire safety assessment for your premises and mitigate risks.

However, as you would expect, this guidance is more complex, as it covers larger building types and takes account of employees and large numbers of guests being on the premises at the same time. As such, it requires the appointment of a ‘responsible person’ for fire safety who has specific fire safety training, as well as the communication of fire safety requirements to other staff.

While you are still able to nominate yourself as a responsible person and undertake the Fire Risk Assessment, the larger and more complex your accommodation becomes, the more you may wish to consider employing someone to undertake a professional fire safety assessment.

If you decide to employ someone to undertake your fire safety assessment, there are two principal methods by which people can demonstrate their competence:

1. Professional Body Registration Schemes;

2. Certification by a Certification Body that is UKAS-accredited for the activity.

The National Fire Chiefs Council provides guidance on how to choose a competent Fire Risk Assessor, which includes links to different professional associations.

If you employ a Fire Risk Assessor it is important to remember that you still have legal responsibility for your Fire Risk Assessment and its implementation. As such, you need to be able to demonstrate that you took reasonable steps to ensure the person you employed was competent and that you implemented the assessment properly.

Martyn’s Law is the nickname given to new legislation that the Government is developing to better protect people gathering at attractions or venues from terrorist attacks. The legislation is named after Martyn Hett, one of the victims of the 2017 Manchester Arena bombing. It is being developed in response to the inquiry into the Manchester Arena bombing, which found that venues need to do more to protect people from the threat of terrorist attacks.

The proposed legislation will require ‘eligible locations’ where ‘qualifying activities’ take place to draw up preventive action plans against terror attacks.

In the context of this legislation, ‘eligible locations’ will mean:

• A building (including collections of buildings used for the same purposes) or location or event (including a temporary event) that has a defined boundary.

• The capacity of the building(s) or location or event is greater than 100 people.

The ‘qualifying activities’ being undertaken at these locations will include:

• Entertainment and leisure activities;

• Retail;

• Food and drink;

• Museums and galleries;

• Visitor attractions;

• Sports events;

• Temporary events.

If you are undertaking a qualifying activity at an eligible location, you will be required to take actions to mitigate the risk of a terrorist attack. What you will be required to do will depend on the capacity of your premises or location.

Standard Tier: premises or locations with a capacity of 100 to 800 people

If you operate premises or hold an event with a capacity between 100 and 800 people, you will be required to undertake a range of relatively simple measures to improve your security and preparedness in the event of a terrorist attack. This will include developing and implementing a preparedness plan, awareness raising and the provision of training and information to staff on what to do to reduce risks and in the event of an attack.

The aim is to ensure that staff are better prepared to respond quickly to evolving situations, aware of what processes they should follow, able to make rapid decisions and carry out actions that will save lives. This could be as simple as locking doors to delay an attacker’s progress whilst guiding staff and customers to alternative exits. It could also enable lifesaving treatment to be administered by staff while awaiting the arrival of emergency services.  

Enhanced Tier: premises or locations with a capacity of over 800 people

If you operate premises or hold an event with a capacity of over 800 people, you will be required to undertake additional actions to help ensure the safety of customers in recognition of the potential catastrophic consequences of an attack. These actions include undertaking a risk assessment and security plan, considered to a ‘reasonably practicable’ standard. This will allow operators to assess the balance of risk reduction against the time, money and effort required to achieve a successful level of security preparedness – a recognised standard in other regulatory regimes (including fire and health and safety).  

The Government is still undertaking consultation with industry bodies on some of the specifics of the proposed legislation, and no date has been set for its implementation. A support site for businesses has been established, which provides further information on Martyn’s Law and guidance for businesses on how they can improve their security and help prevent terrorist attacks.

As a result of ongoing examples of bad practice by some employers regarding the distribution of tips received by staff, the Government is supporting the development of legislation that will replace the current voluntary Code of Practice on tipping. The new Employment (Allocation of Tips) Bill is currently going through Parliament, and this will amend the Employment Rights Act 1996 to insert new legal obligations on employers to ensure that all tips and gratuities are passed to employees and that there is a transparent and fair process for their distribution

While the exact requirements of the new legislation are still under debate in Parliament, it is expected that the key requirements will be as follows:

• All tips must be distributed to employees (and any agency workers) in a fair and transparent manner.

• All tips must be distributed to employees by the end of the month following the month they were collected.

• Businesses will not be allowed to retain any part of the tips collected to pay for costs associated with the collection or distribution of tips. For example, if a tip is paid by credit card, the credit card payment costs cannot be deducted.

• The distribution process and individual employee allocations must be recorded, made available to employees and retained for three years.

The Bill will also enable the Secretary of State to introduce a new code of practice about the fair and transparent distribution of qualifying tips, gratuities and service charges detailing what would count as a fair distribution for the purposes of the new legal obligations.

It is expected that the legislation will be enacted in 2023 and come into effect in 2024. However, businesses should look to introducing a tips distribution system that complies with these requirements as soon as possible.

New legislation on single-use plastics

You will recall that in 2020 the Government banned single-use plastic straws, stirrers and cotton buds in England in a step to reduce the amount of plastic waste being produced.

To take forward this initiative, the Government has announced that it is expanding the ban on single-use plastics to include single-use plastic plates and cutlery as well as polystyrene trays. The exact details of the items to be banned is yet to be determined, but the initial understanding is that this will cover items that are provided where customers eat and drink on the premises but will not cover items that are provided for takeaway by food shops and supermarkets.

The ban is just for England but follows similar moves to ban these items in Scotland and Wales. No date has been set for the ban coming into effect, but it will probably be early 2024. The ban demonstrates the increasing emphasis that the public are putting on businesses acting in an environmentally ethical way, so I would advise operators to look at changing their use of these items to more sustainable alternatives now rather than waiting for the ban to come into effect.