Covid passports - are they workable or just a shambles?

Although the Government has been clear that the nightlife industry will be subject to the ‘Covid passport’ regime later this year, there is a lack of clarity with regards the remainder of the hospitality industry. In the longer term, the Prime Minister has not ruled out the eventual need for cafés, pubs and restaurants to also request Covid passports from their customers as a mandatory condition of entry. This guidance creates a large degree of uncertainty and anxiety for business owners and staff alike in the hospitality industry. The boss of Loungers (who also owns the Cosy Club brand), Nick Collins, has described the Covid passport position as “absolutely shambolic” - a view shared by many in the industry, worsened by the lack of clear communication from the Government.

The current position is that businesses in England can use a Covid passport as a means of entry, but the use of the Covid passport is ultimately voluntary. For context, a Covid passport can be granted for one of the following reasons: (a) two weeks have passed since completing a full course of vaccination, (b) a negative PCR or lateral flow test within 48 hours of entering a venue, or (c) proof of natural immunity. The Government has, however, stated that they ‘encourage’ the use of Covid passports in facilities or events where people are likely to be in close proximity to a large number of people from different households. This ‘voluntary’ requirement currently places an additional onus on businesses to decide what is ‘socially responsible’, at a time when they are trying to promote footfall to keep their business afloat and protect the livelihoods of their staff.

Understandably, our clients in this sector are particularly concerned about how mandatory Covid passports will negatively impact their business, especially after a year of disruption and closures due to the pandemic. Many ways in which businesses will be affected will also be out of their control, for instance, the attitudes of their customers and the way a Covid passport would remove any spontaneity associated with the hospitality industry. For example, if an individual is not fully vaccinated, an impulsive visit to their local brunch spot might become overly calculated as they would have to demonstrate a negative Covid test from 48 hours before visiting. This negative effect will most likely affect the younger population as, due to the logistics of the vaccine rollout, a substantial proportion of them are not yet fully vaccinated. The lack of spontaneity has already been identified as having a potentially detrimental effect on nightclubs, with 80% of their trade being impulsive. This will also have a detrimental effect on the food and drink sector, which is likely to miss out on desperately needed custom.

Complicated issues also arise if individuals do not have the vaccine because they are new or expectant mothers, due to religious or philosophical beliefs or in connection with a disability. Businesses and staff alike will be navigating a potential ‘discrimination minefield’ if they are forced to turn customers away on the basis of their vaccination status; a mandatory Covid passport regime exposes businesses and their staff to this potential liability.  Although justification of this policy has not yet been tested given it is not currently mandatory in England, it is more likely to be justifiable as a mandatory policy as opposed to the current voluntary use of Covid passports in the industry. The lack of clarity associated with justifying a mandatory use of Covid passports is of great concern for businesses in the industry; the ‘discrimination minefield’ could open the floodgates, leaving businesses to continuously defend their actions when they are simply complying with the Government’s regime.  

Some staff might not also be fully vaccinated and it is unclear whether any Covid passport will be required for those working in the hospitality industry. The current position is that employers do not have to make vaccines mandatory, unless it can be justified as a proportionate means of managing health and safety.  If staff are required to be fully vaccinated, businesses might face a degree of staff shortages. For further information on vaccinations in the workplace, please see this article from our colleague, Nick Hurley.

The uncertainty as to whether Covid passports will become mandatory for the hospitality industry has meant that these businesses are calling for urgent clarity, with the hope that the Government will realise Covid passports in these environments would be entirely “unworkable”.