Gaps remain in protection law

Impact of legislation to protect hospitality staff open to doubt, writes Jack Cummins

Barperson pulling pint
The new law aims to give greater protection to hospitality workers.

 

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

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HOSPITALITY workers have always been exposed to threatening and abusive behaviour from senseless – even violent – customers.

This sort of vile conduct has, of course, become even more prevalent during the pandemic as staff do their best to ensure compliance with COVID-19 regulations: for example, it’s really distressing to hear reports of employees being spat at when attempting to enforce social distancing or face-covering requirements.

So, the awkwardly-titled Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act – a private member’s measure promoted by Daniel Johnson MSP – looked like really good news for the industry.

But when it came into force on 24th August, you’d be forgiven for assuming that the new protections only applied to those working in shops. That was certainly the impression conveyed by every single media report I read. For example, the BBC News website coverage carried the heading, “New legislation protects Scottish shop staff from customer abuse”.

The good news is that the Act’s provisions do extend to the hospitality sector – but this is a really strange piece of legislation with some disappointing gaps.

It’s an offence to “assault, threaten or abuse” a retail worker engaged in retail work.

But you won’t find any reference to “alcohol” or “licensed premises” anywhere in this very short piece of legislation. Instead, the focus is upon “retail workers” engaged in “retail work” in “retail premises” used wholly or mainly for the sale of goods to the public. Pubs count as “retail premises” on the basis that drinks constitute “goods”.

So far, so good – but what about other hospitality outlets such as hotels and nightclubs?
These businesses aren’t “retail premises” and, as a result, the protection is limited. For example, a hotel concierge attending to arriving guests is outwith the scope of the Act, as is a nightclub door supervisor – although protection is afforded to someone performing “meet and greet” duties at the entrance to a department store.

But there is protection for bar staff working in hotels and nightclubs.

Those employed in wholesale cash-and-carry outlets arguably aren’t operating in a “retail” environment selling goods to the public at large so they appear to fall into a crack, even when selling alcohol. It doesn’t make any sense, does it?

Perhaps the most curious feature of the Act is its duplication of existing law. Assault is, of course, a common law offence and “threatening and abusive behaviour” is captured by the Criminal Justice and Licensing (Scotland) Act 2010 – protecting everyone including retail workers.

Unsurprisingly, Police Scotland has said there would be “no significant change in how we go about our business” as a result of the new Act. Similarly, the Crown Office and Procurator Fiscal Service told MSPs that “violence, threats and abuse against retail workers, or indeed any other person, are prosecuted every day in the courts in Scotland using offences which are commonly understood”.

On this analysis, you might wonder whether there’s any real improvement in the safeguarding of hospitality workers.

Despite the duplication I’ve identified, there’s a welcome recognition that staff enforcing an age restriction are particularly vulnerable to abuse. In such a case, the offence is “aggravated”: that is to say, the court must take the aggravation into account when imposing a sentence.

But while a convicted person faces a prison sentence of up to 12 months and/or a fine not exceeding £10,000, I’m not expecting judges to depart from their current approach which militates against short prison sentences.

Ash Denham, Holyrood’s minister for community safety, expressed the hope that the Act could “make the general public think more about their behaviour when they interact with retail workers”.

It’s a very worthy aspiration and there’s no doubting the Act’s laudable intentions – but whether it makes any real impact is open to doubt.