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Club Law and Management

by Philip Smith, Secretary of the A.C.C.

Questions and Answers

 

Q. We have a Committee Member who is not conducting himself properly and it is likely a majority of the Committee would wish to see him removed from the Committee. Can the Committee itself remove an elected Committee Member or would the Members have to authorise such a removal?

A. The Committee itself cannot remove a Committee Member, only the Members of the Club can authorise such a removal, as the old adage goes, ‘those who elect, reject’. This does not apply, however, if the Committee Member in question is suspended or expelled from the Club. Unless disciplinary action is taken against this Committee Member, the Committee would have to call a Special General Meeting and ask the Members of the Club to support their proposal for removal. If disciplinary action is taken then the Committee Member will be removed from the Committee automatically if he is either suspended or expelled from the Club.

Q. Many of our employees like to socialise in the Club when they are not working. We are happy for them to do so but wish to make sure that their attendance inside the Club is above board. Do they need to be signed in each time they visit the Club when not working?
A. We would suggest that any Club employee who wishes to use the Club when they are not working joins another local Conservative Club and obtains an IA Ticket. Is there perhaps a local Conservative Club which might be able to assist with this? In return you could provide them with assistance if they have employees who wish to use their Club when they are not working. Technically only Members, Members’ guests and IA Ticket Holders are able to use the Club. There is no discretion given in the Licensing Act 2003 to allowing employees to use the Club although it is possible that an argument could be made that the Club’s employees were using the Club as guests of the Committee. In my view, it is good practice to ask employees to become Members of another ACC Club and obtain an IA Ticket so that they may enjoy the facilities of the Club when not on duty.
 
 
 

Q. We have a situation developing in our Club which might lead to the dismissal of an employee. The Committee is concerned at the legal implications for the Club if we do not follow the correct procedure as none of the Committee are well versed in employment legislation. Do you have any guidance which you could provide us with?

A.I would first of all suggest that the Committee contact the Club’s insures to identify if legal cover is provided within the Club’s insurance policy. Often an insurance policy will protect the Club in the event of a claim for unfair dismissal but the Club would have had to have involved the insurance company at the start of the disciplinary procedure to be covered by such cover. In any event, I strongly suggest that you follow the ACAS guidelines regarding disciplinary procedures which we can provide to you. Failure to follow a correct disciplinary procedure could mean that the Club is at risk of being found to have unfairly dismissed an employee if that is what eventually happens. Should the Committee decide that the employee is to be given a written warning then the employee has the right to appeal. Customarily an employer would give an employee a verbal warning, a written warning, a final written warning and then this would be followed by dismissal unless the Committee considers the conduct so serious as to justify immediate dismissal because of gross misconduct. If you are proposing to discipline any member of staff with any sanction other than a verbal warning, they must be informed in writing of the allegations against them, invited to a disciplinary hearing, given the right to be accompanied by a work colleague or a trade union representative and given the right to put forward representations at the disciplinary hearing before any sanction can be imposed. The employee must be given a right to appeal any disciplinary or dismissal sanction. The ACAS Code requires that before dismissal for misconduct or poor performance, an employer should:
• Investigate the issues;
• Inform the employee of the issues in writing;
• Conduct a disciplinary hearing or meeting with the employee;
• Inform the employee of the decision in writing.
• Provide the employee with a right of appeal.
The ACAS Code also recommends that employers should, at the start of the disciplinary hearing, explain the complaint against the employee and go through the evidence that has been gathered and the employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. All disciplinary matters should be dealt with at disciplinary meetings. The Committee may prefer to appoint specific Committee Members and Officers to conduct the disciplinary hearing and make the appropriate decision. In the event of an appeal it is important to be able to have the appeal heard by persons who were not involved in the original disciplinary procedure. The Committee should also consider taking independent legal advice prior to making any decision to dismiss an employee. The Committee may also wish to consider requesting independent legal advice to assist them throughout the disciplinary procedure if they are not confident of being able to follow the proper procedure without a legal advisor attending the disciplinary meetings with them.

 

Q. One of our Committee Members was involved in an altercation with a Member and subsequently submitted a complaint to the Committee regarding the conduct. We understand that this Committee Member cannot cast a vote at the disciplinary meeting, but are they able to sit as part of the Committee during the disciplinary meeting and take part in the discussion?

 A. As this Committee Member made the original complaint regarding the Member’s conduct they cannot be part of the disciplinary meeting which has been convened to discuss this matter although it is likely that the Committee will require the Committee Member’s attendance at the meeting as a witness in order to question him about the event. As he was the original complainant he is unlikely to be able to act impartially on this matter. Therefore it is advisable that he is not part of this disciplinary meeting. However, as I have mentioned above, his involvement as a witness would not be affected.
Q. Are employees able to use the Club’s Gaming Machines? We have Members who consider that it would be unfair for an employee to win a jackpot, perhaps aided by watching the machine.
A. Opinion is divided on whether it is possible for a person to determine when a machine might pay out although we are aware that there is a common perception that watching machines gives rise to an unfair advantage. Gaming machines have to adhere to strict average pay-outs and this is calculated over the course of a machine’s entire life and is therefore unpredictable. It may be that a machine goes months between the jackpot being won, or it may be that two jackpots occur on the same day. With the advent of extra features such as nudges and hi/lo features it is even more difficult to calculate if a machine is about to pay out. It is, however, preferable to avoid any possibility of an unfair advantage, real or imagined, and as such it is good practice to prohibit Club employees from using the Club’s gaming machines.

Q. We have occasionally had problems with Member’s guests who have to be asked to leave the Club. Could you let us know what action should be taken in the event that such a person refuses to leave the Club?

A. If they are a guest of a Member then that Member is responsible for their conduct and should assist the Committee or bar staff in ensuring that their guest leaves the Club if so requested. I would suggest that if any person inside the Club refuses to leave once they have been asked that the Police are then called to remove them from the Club. It is not advisable for any employee or Member of the Club to engage physically with a person who is causing problems, in such circumstances the Police should always be called. Should a Member’s guest be asked to leave then the Committee has the discretion to prevent them from entering the Club in the future. In extreme cases, the Committee may also take disciplinary action against the Member who signed them in. I understand that the Committee does not wish to involve the Police more than necessary, hopefully by taking a strict approach to such incidences it will reduce the frequency of them and also mean that when asked to leave that the person in question does so immediately and without need for the Police to be called.

 

Q. Our Committee have recently had to invite a Member to a disciplinary meeting after some poor behaviour. We are a small Club and don’t often have to officially deal with such problems, could you let us know how we should conduct a disciplinary procedure?

A. You cannot expel or suspend a member from the Club without first inviting them to a Committee meeting. A suspension or permanent expulsion can only take place once a disciplinary meeting has been held. You can also only suspend a Member for a maximum of twelve months. If the Committee are of the opinion that this individual’s behaviour has either broken specific Club Rules/Bye-Laws or could be judged to be prejudicial to the Conservative cause or the interests of the Club then they can summon this member to appear before the Committee. The Committee should inform them of the allegations that have been made against when asking them to attend the disciplinary meeting. The Committee can also instruct this member to withdraw from the facilities of membership until he appears before the disciplinary meeting. It is normal that once the withdrawal takes place that a disciplinary meeting is held within two months and that at least seven days’ notice of the meeting must be given to the member, in accordance with the Club’s Rules. If this is how the Committee wishes to proceed you should write to the member and inform them that due to their conduct he has been requested to appear in front of the Committee. You should also include the precise details of the complaint and alleged conduct which has forced the Committee to summon the Member to them. You should then hold the disciplinary meeting and, after reviewing any points this Member has to make in their defence, the Committee should decide if their conduct requires a suspension of membership up to one year in length, permanent expulsion from the Club or no action taken against them. If you decide to withdraw the facilities of membership from the Member until the Committee has heard the disciplinary meeting then this means that they will be unable to enter the Club until the disciplinary meeting has been heard.

Q. We have a former employee who is claiming that they have been unfairly dismissed. We dispute this and it appears that the case might go to an employment tribunal. Can you give us some advice to assist us in preparing for such an eventuality?
A. Should you dismiss an employee then they are able to take the Club to an employment tribunal if they feel that the dismissal is unfair in any way or that the correct procedures have not been followed. However, only an employee of over twelve month’s continual service can take such an action. If the matter proceeds to an employment tribunal then this will require the Club to present their case to an employment tribunal over one or more days. Should the Club be unsuccessful in establishing its case then the Club will be required to pay compensation. The amount of compensation will depend on the individual facts of the case and whether the employee obtains further employment after their dismissal. Before a case gets to the tribunal stage it is likely that ACAS will be involved and there will be the possibility of attempting to settle the case with the employee. This is likely to involve a financial payment to the employee which will be based on the chances of them successfully prevailing at a tribunal and of how much they are likely to be awarded if they are successful. The Committee may wish to seriously consider if such a settlement would be sensible when the time arises. The Committee is likely to seek professional legal representation for presenting their case at an employment tribunal or when negotiating a settlement. Alternatively, a compromise agreement may be used at the time an employee is dismissed. A Compromise Agreement is an agreement which waives the employee’s right to submit a claim for unfair dismissal. A Compromise Agreement should not be used without first seeking independent legal advice and making sure the agreement has been executed successfully. An employee would also need to seek independent legal advice, which is usually paid for by the employer, before signing such a Compromise Agreement and it would be usual for an additional payment/settlement to be made to an employee in recognition of signing such an agreement.

Machine Games Duty Update

All Clubs which operate Gaming Machines should have registered for Machine Games Duty (MGD) which came into effect on the 1st February. If any applicable Club has not yet registered for MGD then we recommend that you contact HMRC and register for MGD as soon as possible. Clubs which do not have Gaming Machines or purely have a B3A machine do not need to register for MGD. From the 1st February 2013 VAT was no longer applicable to the profits of Gaming Machines and the Amusement Machine License Duty (AMLD) component was removed. Replacing them both was a single tax rate, MGD, which is imposed on the profits of Gaming Machines and is calculated on a pay as you go basis.

Linneweber 1 Update

Whilst most Clubs should have received payment from HMRC for a successful Linneweber 1 claim, those Clubs which had claims rejected due to an initial failure to quantify a claim may wish to contact Ian Spencer and Associates. Ian Spencer has been working with several ACC Clubs who had their original Linneweber 1 claim rejected and successfully filed claims with HMRC on behalf of a number of Clubs whose original claims were rejected. Recently he managed to claim almost £3000 for one ACC Club which had its original claim rejected. Ian can be contacted on 0114 258 5967.