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Club Law and Management

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

Q. We have an employee who has been on maternity leave for twelve months. Can you let us know what holiday entitlement she will be owed when she returns to work?

A. An employee who is on
maternity leave will continue
to accrue holiday at the usual rate
and it is expected that they will
be allowed to carry such holiday
over to a new holiday year if
applicable. This is the case even if
the Club’s adoptive policy is that
untaken holiday cannot be carried
over from one holiday period to
another. Therefore, an employee
who has been on maternity leave
for 12 months may return to work
and effectively have two years of
holiday allowance available to take
in the current holiday period.

 

Q. The Club is currently in
financial difficulty and the
Committee is looking at  options to attract more revenue. One option put forward was to either rescind the category of free Life Memberships or to charge all current Life Members a
discounted annual subscription.
Would we be able to make such
a change?

A. I confirm that this is a question
which has been raised more
frequently by Clubs in recent
years. The reason why many
Clubs now have such a significant
number of Life Members is that the qualifications for Life Membership in the Rules of most Clubs have not changed for a number of years. For example, a Club with a Life Membership category of a Member having to have completed 20 years
membership and attained the age
of 65 is likely to have a very large
number of Life Members. When,
however, this Rule was originally
adopted, possibly as long ago as
the 1920’s, the life expectancy was very much lower than it is today and consequently the number of Life Members would not have been significant. The Rules of a Club form a contract between the Members and each other and the Members and the Club. Like any contract, the terms can be changed in accordance
with correct procedure. Therefore,
it would be possible for the Members to agree an amendment
to the Club’s Life Membership
Rule that would either alter the
qualifications for Life Membership
or to introduce a reduced amount
of subscription to be payable by all Life Members. I prefer the reduced subscription option and I think most Life Members accept that if they are to continue to enjoy the Club it is reasonable for them to make a modest contribution each year. If the terms of this Rule are amendment then the new terms will apply to all existing Life Members who would be automatically bound by the terms of the new Rule. It is also fair to say that many Clubs do not have a category of Life Membership, instead preferring to use Honorary Membership to reward and recognise those Members who have contributed services to the Club over many years.

 
 
 

Q. In recent years there have been insufficient candidates for election to the Committee which has resulted in everyone who was nominated  automatically being elected
without a ballot taking place.
Sometimes this has resulted
in unpopular candidates being
elected to the Committee.
Would it be possible to amend
the Rules so that in future
Members are able to vote
for or against each proposed
candidate?

A. Many Clubs are experiencing
a lack of interest from Members in standing for election to the Committee. This is common in
almost all voluntary organisations.
However, we would not recommend incorporating your proposed amendment within the Rules. The reason or this is that in practice it could result in no member being elected to the Committee which would be unacceptable under the required constitution of the Club’s
Committee. In short, the Club
must have a Committee in order to
function. If Members are unhappy
with the calibre or popularity of
Members being proposed, then the obvious answer is that they should consider standing for election to the Committee themselves and also encourage others to do so. It is easy to criticise a Committee but more challenging to actually serve
on a Committee. I have been advising Clubs for many years to carry out Rule amendments that reduce the number of Committee Members and Officers being elected. This usually results in there being more candidates than vacancies which has the desired of creating an election. For example, many Clubs now operate with eight or six Committee Members in addition to a President, Chairman, Treasurer and Secretary. This total number of twelve or ten Members of a Club Committee seems to be the most popular arrangement. You will appreciate in the case of an
unincorporated Club that Trustees
would also need to be elected.

 

Q. We have only just found
out about the Linenweber 2 case. Could you let us know
where we can download the
claim forms to enable us to
submit the claim and the costs
involved?

A. The ACC has arranged an
agreement with Ian Spencer & Associates to pursue a claim on behalf of a Club for a flat rate of £150 + VAT and then 10% of any eventually payout. In order to do this you can download the documentation from their website,
www.vatproblemssolved.
com
, and once completed they
will then take charge of the Club’s
case and liaise with HMRC.
Alternatively, if the Committee
has sufficient technical experience
then you are welcome to pursue
the claim internally. It is important
for the Committee to be aware
that at this stage that the claim is
only speculative and is not yet
confirmed.

 
Q. The Club operates a tote
each week and all the proceeds from the tote are spent on the prizes. Are we able to deduct a portion of the proceeds from the tote in order to assist the Club generally?
A. Just for the sake of clarity a
tote is, under the terms of the
Gambling Act 2005, regarded as a
lottery. If the tote is run as either
a small lottery or a private lottery
then proceeds can be donated to
the Club. It is not a requirement
for all the proceeds to be used for
the provision of prizes. The main
prohibition is that the proceeds can never be used for private gain.
It would therefore be entirely in
order for the Club to retain some
of the proceeds of the tote for the
purposes of the Club to benefit the
Members. The advice I would give however, would be to make it clear to all the participants that in future a percentage of the proceeds would be devoted to some specified Club activity. In the event of any change in the usual way in which a game is being played or in how the proceeds of a game are to be used, it is important that everyone is fully
aware of such a change so there can be no accusation of changing the rules in the middle of a game.
 

Q. We have a disabled
Member and since the Club does not have a lift he is not able to reach the first floor
function room. Do we have a
legal obligation to install a lift to enable him to reach the function room?

A. The Club is required to make
all reasonable adjustments to
allow disabled access and create
disabled facilities. However, the Club is not expected to such adjustments which are not
considered reasonable because
of cost, time or other practical
considerations. What is  considered reasonable will differ from Club to Club; we recommend that you obtain a quote for any proposed
adjustments so that the Committee
can then make an informed decision on whether it would be reasonable for the Club to undertake the changes requested. At the very least it will show that the Committee has properly examined the possibility of changing the Club to make it
more disabled friendly even if the
Committee ultimately elect not to
proceed because of cost or other
considerations.

 

Q. Who should be allowed to
have a key to the Club’s
office? Currently only the
Secretary and the Treasurer
have a key but the President has stated that he too should have a key to the office.

A. We suggest that a vote is taken
at the next Committee Meeting
to establish who the Committee
considers should hold a key to the
office. You will appreciate that
ultimately such internal discussions
are always best left to the elected
Committee to decide. It would
not be helpful for the ACC to start
deciding such policies for Clubs.

 
Q. Our Club holds children’s
parties periodically and a question has been raised
regarding the CRB status of those involved. Are we
required for have CRB checks
undertaken on employees and
Committee Members that may
be in attendance?
A. The Criminal Records Bureau
(CRB) is an Executive Agency
of the Home Office and was set
up to help organisations make
safer recruitment decisions. The
necessity for adults supervising
a children’s Christmas party in
a club to be CRB checked will
vary depending upon who the
supervisors are and what their role
is. Clubs that wish to use CRB
checks must comply with the
CRB’s code of practice and must
register with the CRB. If the supervisors are merely parents of the children in question then no checks will be required for a ‘one off’ event. This will also be the case if volunteers are used and it will ultimately be up to the
organiser of the event to be satisfied that they are all suitable to work with children. A lack of prescribed legislation emphasises that it will be at the organiser’s discretion; if they feel further checks against an individual are necessary then they should not hesitate in requiring them. If supervisors are hired and they host this type of event for a living then they will have already had to disclose any convictions when applying for a job that involves working with children. All organisations that provide these services will require a CRB of all employees before they are allowed to work. Needless to say, it is always be a good idea to request confirmation that this is the case.

Machines Games Duty

Machines Games Duty (MGD) is a proposed new Duty which will replace VAT and Amusement Machine Licence
Duty (AMLD) for gaming machines. MGD will operate by taking a specific percentage of gaming machine revenue.
This new tax system will come into effect on the 1st February 2013 although we do not have details regarding the proposed percentage rate at the time of going to print.

MGD is designed to be fiscally neutral for HMRC which means that it is not intended to raise more tax than is currently raised from VAT and AMLD. It is hoped that this system will actually benefit smaller clubs which may not have wished to pay expensive and prohibitive upfront AMLD for gaming machines. Following the introduction of MGD, there will no longer be any upfront costs associated with installing specific gaming machines (although Clubs will continue to require a Club Gaming Permit).

I am also pleased to announce that following a submission by the ACC and other Club organisations it has been
announced that category B3A machines will not be included in this new system.

This means that category B3A machines will retain their current tax free status (please see December 2011 magazine). B3A machines attract neither AMLD nor VAT on their takings which have made them popular with Clubs. This development is very positive and we are sure more Clubs will utilise the tax advantages of having a B3A Gaming Machine now that their tax position is clear.

We will continue to provide updates regarding the new MGD periodically in the magazine.