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Club Law and Management

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

Machine Games Duty Reminder

On the 1st February 2013 VAT will no longer be applicable to the profits of Gaming Machines and Amusement Machine License Duty (AMLD) will be scrapped completely. Replacing them both will be Machine Games Duty (MGD) which will be imposed on the profits of Gaming Machines and will be calculated on a pay as you go basis.

If the Club is due to be liable for MGD then you must register by the 31st December 2012. You can choose to register online or you can print off a paper registration form from the internet. If you do not have internet access then your machine supplier should be able to provide you with a paper registration form. If you have any problems obtaining a paper registration form then please contact Dransfields, the ACC’s recommended gaming machine supplier, who are happy to assist all ACC Clubs regardless of whether the Club is a customer of Dransfields. It is very important that all Clubs which are liable to pay MGD register as soon as possible.

Questions and Answers

Q. We have always held a ‘Happy Hour’ at the Club but recently a Committee Member stated that he understood that alcohol promotions had been banned that that if we continue to offer cheaper drinks at specific times we could be in breach of the law. Is this correct?

A. There is considerable confusion over what drinking activities or promotions are lawful and which ones are not lawful although the general consensus is that reduced drinks prices for a set number of hours per day, i.e. a ‘Happy Hour’, is permissible. As such, if the Club was to run a normal happy hour, as numerous other licensed establishments do, with reduced drinks prices between set times then it is unlikely that you would encounter any difficulties over such a promotion. The Government has provided guidance on the types of activities which are not permissible and examples are included below:
- Drinking games - any form of speed drinking game
- Large quantities of alcohol for free or at a fixed or discounted price - such as ‘all-you-can-drink for £10’
- Prizes and rewards - ‘drink four pints get the fifth free’
- Sporting events - promotions like ‘half price drinks when England score a goal’
- Posters and flyers - adverts that ‘condone, encourage or glamorise anti-social behaviour or refer to getting drunk in any positive way’
- No alcohol can be dispensed directly into the mouth e.g. ‘the dentist’s chair’ However, this list is not exhaustive and “substantially similar activities” are also banned although this is where the confusion begins as there is limited information available on what ‘substantially similar activities’ may encompass. However, the above list should allow the Club to hold alcohol promotions without falling afoul of the law and as long as the Club holds responsible promotions which are not intended to glamouise drunkeness or lead to persons getting quickly intoxicated within a short space of time.

 

Q. We are in the process of recruiting a new Steward for the Club. Do you have any advice on the type of person we should be looking for and if we have to advertise this position externally or could we, if we had a suitable candidate, simply appoint from within the Club?

A. The Committee is free to advertise any vacancy as they see fit. Should the Committee already have a candidate in mind then there is no need to advertise the position at all, instead the Committee can directly approach a potential candidate. In some situations it is eminently sensible not to advertise a position if the Committee already have a preferred candidate in mind. Any such decision on this matter should be taken by the entire Committee unless the Committee has designated specific Committee Members or have created a sub- Committee to deal with the recruitment of employees. Clearly for the position of bar staff the best candidate is likely to be a well-rounded individual, possibly with experience in the hospitality sector, who is trustworthy, well presented, personable and who will give a good impression of the Club to Members and visitors to the Club. As with many jobs of this nature, it is often less to do with the candidates formal qualifications and experience and more to do with subjective factors such as the ones mentioned above. As long as the Committee acts in good faith regarding the recruitment process and does not appoint or determine the successful candidate on the basis of gender or race then the Committee should not have any problems regarding whom they ultimately decided to appoint. Having said that, having a clear job specification with notes taken at interviews and the decision process minuted will also be beneficial in the case of any complaint against the Committee’ selection.

 

Q. We have a number of employees who regularly take smoking breaks throughout their shift leaving the bar unmanned in some instances. Are they legally allowed to take frequent smoking breaks?

A. There is no additional legislation for smokers. Smokers, like all employees, are entitled to minimum breaks of twenty minutes every six hours. Under the Working Time Regulations, all employees aged 18 or over, should be offered a minimum 20-minute break for every shift lasting more than six hours. Breaks for smokers are at the employers’ discretion, legally there is no need to offer a smoker any more than one 20 minute break for every six hours of work. Breaks should not be taken at the beginning or end of a six hour shift.

 

Q. At our last meeting the Chairman resigned from the Committee after what could be described a heated discussion with several other Committee members. Whilst we can accept his resignation I have been told that he may wish to stand again for the Committee at our AGM. We have Committee vacancies at present and provided he was proposed and seconded, we consider the likelihood is that he could walk straight back on the Committee uncontested. What is our position?

A. There are two separate points in your question which need to be dealt with. The first is the question of the resignation of the Chairman. The Club’s Rules state that a Member of the Committee can resign by providing written notification to the Club’s Secretary or that a verbal resignation may be accepted provided that it is recorded in the minutes and approved by the Committee at a subsequent Committee Meeting. In this situation you have described it would seem appropriate to conclude that the Chairman verbally resigned and that this will become effective when it is reported and accepted at the next Committee Meeting. The second point is whether the Chairman can stand for election to the Committee once his resignation has been accepted. There is no prohibition on former Officers or Committee Members standing for election under the terms of your Club’s Rules and as such the Chairman would be able to stand for election at the next AGM. If there were insufficient candidates to force an election then he would be automatically elected to the Committee, if there were sufficient candidates which meant that a ballot was required to be held then it would be up to the Club’s Members to elect the candidates which they consider are most suitable.

Q. We have recently attempted to modify the Club’s Rules but have been unable to obtain the consent of 75% of the Members present at the Special General Meeting to approve the change. Some of the Committee Members are unhappy that such a large majority is required for a Rule change. Is it possible to modify this Rule to allow a two thirds to pass amendments?

A. I can confirm that technically it would be possible to change the requirement of Rules needing to be amended or adopted by way of a 75% majority but in order to amend this Rule, a 75% majority would be required. However, I would certainly not advise the Club to amend this provision to a simple majority vote since the constitutions of almost all Clubs, Associations, Organisations and Companied require some form of fixed majority voting in order to make amendments to their Rules, Constitutions or Memorandum & Articles of Association. In other words, if there was a proposal to reduce the three fourths down to two thirds then this would be something the Members could consider but, as I have already mentioned, I would certainly not advise the Committee to pursue anything less than this. In many Clubs, the Rule concerning the ‘Amendment of Rules’ is declared to be fundamental and cannot be amended without the prior written consent of the ACC.

 

Q. We have a Committee Member who has been absent for the previous three Committee Meetings although he has sent his apologies in for each Meeting. Under our Rules, it states that a Committee Member shall cease to be a Committee Member if they are absent for three Meetings and their written explanations are deemed unsatisfactory by the Committee. What constitutes a satisfactory written explanation?

 A. If a Committee Member is absent for three meetings and the Committee does not accept their written explanations for their absence then, under most Clubs’ Rules, they cease to be a Committee Member. It is for the Committee to determine at each meeting if their written explanation for absence is satisfactory or not. If their apologies are accepted by the Committee then this would indicate that their written explanation has deemed to be satisfactory. If a Committee Member has not been absent for three Meetings, or their written explanations for their absence have been accepted as satisfactory by the Committee then they continue to be Committee Members. The Committee does not have the power to remove a Committee Member unless the conditions of the Club’s Rules have been satisfied. I would suggest that if a Committee Member’s written explanation is not accepted that they are informed that their written explanation was not accepted.