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Club Law and Management

Linneweber Update

Clubs which previously submitted a Linnweber 1 claim and received a refund should be aware that HMRC were successful with their appeal of this case and as such will now be seeking repayment of the money previously refunded to Clubs who submitted a claim. Most affected Clubs will have received a repayment request by now. If financial help is required to repay HMRC then the ACC will assist.

We can also confirm that the request to have this decision appealed has been granted. This means that the Supreme Court will hear the case again and make a final decision. Should the Supreme Court decide against HMRC then Clubs will be refunded at that time. We do not expect a decision on this case until 2015 at the earliest.

Further fines for Licenced Premises broadcasting Sky illegally

The Federation Against Copyright Theft (FACT) has successfully prosecuted two premises in connection with illegal broadcasts of Sky Sports. Mr. Melvyn Edwards, Prince Albert in Wall Heath, and Mr. Mark Pritchard, Rose and Crown in Brierley Hill, were both convicted and fined for showing Sky Sports illegally in their premises.

Stephen Gerrard, Prosecuting Manager, FACT, said: “Our aim is to help create an effective deterrent to publicans and Club operators who endeavour to fraudulently show Sky content in their premises. People found to be showing Sky in commercial premises without having entered into the correct commercial subscription agreement with Sky face criminal prosecution, costs and potential loss of their license.”

Alison Dolan, Deputy Managing Director at Sky Business, said: “These cases reinforce our message that Sky will continue to support FACT in prosecuting those who break the law as part of our commitment to helping protect the thousands of hardworking pub and Club operators who invest in Sky Sports to drive value for their businesses.”

This is a useful reminder to all Clubs that the risk of prosecution is real should the Club be found to be unlawfully broadcasting Sky Sports

Funding Circle

We have been informed that Funding Circle have been contacting Private Members’ Clubs. For the avoidance of doubt, Funding Circle are not recommended by the ACC and we have not given Funding Circle permission to contact our Member Clubs. Any Club who has entered into an agreement with Funding Circle is welcome to contact the ACC to discuss the situation.

Questions and Answers

Q We have received information which states that alcohol promotions have been banned. We do not tend to undertake many drink promotions, instead preferring to keep drink prices as low as possible as a matter of course. Should we be concerned regarding this legislation?

A The conditions regarding irresponsible promotion of alcohol are not new, they have existed as unofficial guidelines for many years. It is just that they have now been formally placed into law. Examples might be promotions designed to get the participants as intoxicated as possible as fast as possible or to offer free alcohol in connection with sporting events. We would be surprised if the Club would want to run any promotions that would be defined as an irresponsible promotion under these new licensing conditions. You should therefore not be concerned.

Q The Club’s car park is regularly being used by non-members since we are close to the town centre. We are aware that clamping is no longer lawful, is there another way to ensure that the car park is only used by the Club’s Members?

A Car parks are a difficult area to enforce as often the local Police will not act on cars parking on private property. Unfortunately it is becoming increasingly difficult to enforce private car parks without the use of automated gates or similar (rising bollards etc.) which can be expensive to install and they are not always a convenient or practical solution for Clubs.

Tickets can be issued to cars parked on private land and we would recommend that if tickets are issued that the sums charged are reasonable and appropriate. However, often individuals will not willingly pay their tickets and should you wish to recover the sum then private legal action will be required. This can often cost more than the sum that you are seeking to discover. Should you wish to legally pursue an unpaid ticket it is advisable to have clear photographic evidence of the car in question parked on the land. We would also recommend that notices are clearly placed detailing the charge that will be made to vehicles parking on the land. If you keep a record of the car’s registration then you should be able to obtain the owners details from the DVLA although a charge may be levied for doing so.

There are also private firms which can assist the Club by patrolling the car park and issuing tickets to any vehicle which is parked in the car park without authorisation. You could establish a list of car registrations which are able to park in the Club’s car park or establish a system whereby if a Member’s car is ticketed then that ticket will be cancelled. We accept that both can be difficult and time consuming to implement in practice.

A firm called Flashpark, http:// www.flashpark.co.uk/, has been in the press recently as a way for private landowners to enforce tickets. Essentially they offer a service whereby private landowners can take a suitable picture of the illegally parked car (the picture should also have a parking notice visible), upload it to Flashpark and then Flashpark will enforce the ticket and the private owner will receive a small fee for each successful ticket enforced. However, we do not know of any Club which has used this service and this firm is not an ACC recommended supplier. The Club would therefore have to use them at their own risk.

Q We have an employee on a zero hour’s contract. Due to the nature of this contract, if we cease giving this employee hours could they claim unfair dismissal?

A Without having seen the specific contract in question we can only provide general advice on this matter.

In general terms this is an area which is slightly uncertain and untested since there have not been too many employment tribunal cases concerning zero hours contracts. This is likely to change as these contracts become more frequently used.

Employers will usually argue that a zero hours contract does not bestow employment rights onto workers and therefore an employee cannot claim unfair dismissal if they are not offered further work. Typically a zero hours contract will specifically mention that the employer is not obligated to offer an employee any hours. It is important that the conduct between the Club and this employee follows the principles laid out in the contract of employment. Essentially, if the contract states that the employer is not obligated to provide the worker with hours then it will also state that the employee is able to refuse any hours which are offered. It would then be important to show that the employee has not been pressured to accept hours and there is no obligation, actual or implied, that they will accept the hours which are offered to them.

In a recent employment tribunal case, it was decided that the workers employed under a zero hours contract could claim unfair dismissal as there had been, contrary to the written contract, an obligation on them to accept work if offered to them. The Employment Tribunal decided that the written contract of employment did not reflect the true agreement between the parties. The legal phrase is ‘mutuality of obligation’ which means that there is an obligation between the employer and the employee which goes beyond that of the zero hours contract. A mutuality of obligation will typically exist where a company considers itself obligated to provide regular hours to an employee and the employee feels obligated to accept the regular hours which are offered.

The answer to your question is therefore dependant on the specific relationship which has been cultivated with this employee. If, for instance, they work the same ten hours every single week and have done so for two years then they are more likely to be found to have employment rights (and as such able to claim that they have been unfairly dismissed if these hours ceased to be provided) than an employee who does not work regular hours, has commonly refused to work any hours in a single week and the working relationship can be shown to be very flexible both on the side of the Club and on their side as an employee (essentially, the Club doesn’t always provide the employee with work and the employee doesn’t always accept the work which is offered).

Ultimately, I think you are in a better position than we are to judge the type of employment relationship that you have with this employee. As above, the key components to consider are whether either party considers, despite the contract, that there is an obligation to provide and accept work, if the hours provided are identical every single week and how long this situation has been going on for.

Q The Club hosts a poker evening each week. One of the participants is asking that the stakes limit for the game is raised. Is there a maximum stakes limit that we cannot exceed?

A Clubs may provide facilities for equal chance card games for their members under the exempt gaming provisions contained in Part 12 of the Gambling Act. There is a stakes limit of £10 per player per game–the limit applies to a game, not a single hand–as well as aggregate stakes limits of £250 per day and £1000 per week for each individual Club. For example, the Club could run a poker game for twenty-five players paying £10 each four times per week. The maximum prize in a game is £250 and the maximum charge that a Club may make for participating in card games is £1 per player per day. No deductions or levies are permitted from either stakes or prizes. Where a Club holds a Club Gaming Permit, the maximum participation fee is £3. Where a Club Gaming Permit is held there are no statutory limits on stakes or prizes.

Q We have had difficulty finding willing volunteers to take on the vacant roles of Secretary and Treasurer. If we cannot find volunteers to take on these positions, what action can we take?

A It would clearly be preferable if there were willing Members to take on the positions of Secretary and Treasurer. Without willing Members to take on these roles then the only remaining options are to either spread the responsibilities out to the remaining Officers and Committee Members or to employ a person to fulfil these roles in an administration role. I understand that both of these options are undesirable in terms of the increased work load for the remaining Committee Members and the cost implication of creating an employed position. Should either of these options be undertaken it is likely that a revision of the Club’s Rules would be required to reflect the changed operating structure of the Club.

The day to day business of the Club still has to be undertaken and as such one of the above options needs to be adopted if willing Members cannot be found for these important roles. It is a concern that Members are unwilling to volunteer for these positions. The Members may need to be reminded that the Club relies on volunteers to function and that it is a legal requirement to have a properly elected Committee running the Club. Hopefully this will focus the minds of the Members and suitable volunteers will be found.

Q We wish to have a ‘race night’ in the Club although we understand that we can only hold such a night if the proceeds go to a ‘good cause’. We were hoping the proceeds of the night could assist the ongoing renovation of the Club’s Snooker Tables, would this be considered a ‘good cause’?

A If the evening is confined to Members, Members’ guests and IA Ticket Holders then we consider that the event could fall under the parameters of a Private Society Lottery. A Private Society Lottery must be promoted for the Club, and the sale of tickets or chances must be confined solely to its members, and to any other persons on the club’s premises i.e. Members’ guests, visitors admitted in accordance with the approved rules, and affiliation ticket holders. Each ticket must have printed on it, the name and address of the promoter, to whom it may be sold (Members, Members’ guests and IA Ticket Holders) and a statement that no prize will be paid or delivered except to the purchaser of winning tickets.

The advantage of classing the event as a Private Society Lottery is that the Club can retain any funds remaining after the provision of prizes and the expenses of printing the tickets and stationary. There are firms which can assist the Club with assembling a professional package for race nights which include printed tickets with the required information contained.

If the Committee does not consider that the event which is taking place complies with the requirements of a Private Society Lottery then it can still be held as a race night assuming the proceeds are given to a good cause. The definition of good causes is extensive and described under Section 2 of the Charities Act 2006. The most likely good cause definitions which may apply to the Club are: (e) the advancement of citizenship or community development and (g) the advancement of amateur sport. If a Temporary Event Notice was obtained then this type of ‘race night’ could also be open to members of the public.

Q We have had reason to ask an employee to attend a disciplinary meeting. Can you confirm if the entire Committee should be present at the disciplinary meeting?

A Technically all the Members of the Committee are able to attend an employee disciplinary meeting although it is often preferable to just have a designated sub-section of the Committee present. Such a course of action should be agreed in advance at a prior Committee Meeting. Considering the total number of Committee Members and Officers who could, in theory, attend the meeting, attempts to reduce this number down are a reasonable course of action.

It is often more practical to have only a sub-section of the Committee present at an employee disciplinary meeting. This is in order to make the disciplinary meeting more manageable in terms of numbers present and also to allow specific Committee Members to remain outside the process so they can assist with an appeal if necessary. If the Club has Trustees then, by virtue of their position, they are also in a useful position to assist with an appeal if one has to be held as the Trustees are often seen to be slightly separate to the elected Committee. This is another reason why the ACC Trusteeship Service is popular with Clubs.