The ‘Substantial Meal’ Clause in New Coronavirus Regulations Is Deeper Than It Seems

Under England’s new coronavirus tier rules, pubs in tier two must close — unless serving alcohol with a “substantial meal.”

The coronavirus regulations define the meal according to precedents set in U.K. licensing law. The U.K. Licensing Act (2003) permits 16 and 17-year olds to drink alcohol if it is served alongside a “table meal.” A table meal, and, for avoidance of doubt, a table, is defined thus:

“[A meal] such as might be expected to be served as the main midday or main evening meal, or as a main course at either such meal. A table meal is a meal eaten by a person seated at a table, or at a counter or other structure which serves the purposes of a table and is not used for the service of refreshments for consumption by persons not seated at a table or structure serving the purposes of a table.”

This allows for the possibility that identical plates of food are or not table meals, depending upon what surface they ultimately reside on. Given all establishments are required to do table service only at the moment, the “is it a bar or a table” question is moot.

The government will expect local councils — and ... The police ... — to decide whether individual menu items constitute a meal, which means that a scotch egg’s definition might change from street to street in London and its 32 different councils. What it ultimately means is that, in “very high risk” coronavirus regions, if a pub can’t serve a “table meal” with its alcohol it has to close.

U.S. authorities have attempted to enforce similar restrictions across the country, with variances by city and state. New York City bars are obliged to serve something “similar in quality and substance to sandwiches and soups” which has led to the likes of a “Compliance Special” which is pimento cheese in a roll for $1. Bars in Texas were permitted to reopen and serve food in partnership with food trucks, but that state also carries a law that defines a bar by revenue percentage: Anywhere that makes 51 percent or more from alcohol sales is a bar. In Washington D.C., bars had to package up food to qualify for cocktail delivery, putting popcorn and peanut butter and jam sandwiches alongside Negronis and Old Fashioneds. The U.K. government has moved to counter this, reframing the coronavirus legislation for December 2020 onwards to state that pubs must close “unless operating as restaurants.”

For comparison, in October, those coronavirus tier restrictions in the U.K. split the country into “medium,” “high,” and “very high” COVID-19 risk areas based on the number of coronavirus cases per 100,000 people. In the “very high” risk tier, pubs and bars had to close — again, except those that could serve a “substantial meal.”

These rules are inextricably connected to coronavirus support from the government. Rishi Sunak extended the coronavirus furlough scheme to March 2021 in November, preventing its replacement with the Job Support Scheme (JSS), which would have fundamentally changed the way that the government addressed restaurants’ needs on staff costs. Sunak also introduced a two-thirds’ wages grant system for businesses that had to close in tier 3, which has now been overridden by the furlough scheme.

The furlough scheme, which paid 80 percent of wages up to £2,500 per month, was designed for a national lockdown. Restaurants, pubs, and bars were unilaterally ordered to close by the government, so the government paid for staff in those businesses to keep their jobs. Then, in July, restaurants, pubs, and bars were unilaterally allowed to reopen — with reduced capacity and social distancing guidelines that depress revenue, but staff that couldn’t return to work because hours weren’t available could remain on the furlough scheme.

It’s now back until March because the new JSS revolved around “viable jobs.” Staff were only eligible if they could work one-third of their hours, and the government only contributed 22 percent of a total wage proportion of 77 percent, based on someone working one-third of their hours. Employers were expected to pay the rest, and this was revised to a 5 percent employer and 61 percent government contribution after backlash, before being scrapped altogether.

While the departure of the JSS reduces tension between restrictions that make jobs unviable being supported by money for viable jobs, it remains that restaurants under tier two, and pubs that can operate as restaurants, are being allowed to open under severely restricted trading conditions while not being allowed to claim further financial relief. Local authorities are able to give £1,500 grants for every fourteen days a business is closed in tier three, but a pub in tier two that can’t serve food can only claim up to £2,100 a month, despite being in an identical financial position.

What ultimately matters is that it represents a larger lacuna in current government policy. The more businesses are eligible to stay open under government policy, the fewer businesses are eligible to claim substantial governmental support. And if trade and employment are so restricted that being open is actually non-viable, those restaurants and pubs operating under tier two coronavirus regions cannot claim enhanced support, because the government never legally forced them to close.

Defining a “substantial meal” is deeper than it seems.