Club Law and Management
Question and Answers
Q We have recently considered if there would be a benefit for the Club by applying for a Premises Licence which would replace the Club’s Club Premises Certificate (CPC). Do you have a view on whether such licences are appropriate for Clubs?
A As a general rule, I would not recommend this course of action. Clubs which wish to operate a commercial venture in respect of providing facilities for the public would need to hold these two separate forms of licensable activity. A Club would become divided between activities run for members and commercial activities run for non-members. Not only will this create difficulty with accounting, since income derived from outside the membership is subject to Corporation Tax, but the possession of a Premises Licence involves a great deal more regulation and red tape than the operation of a CPC. Whilst some Clubs do operate under a Premises Licence, there are several reasons why a Club may not wish to obtain such alicence. By having a Premises Licence the Club will require an employee to be the Personal Licence Holder (PLH). There is a fee to register as a PLH, the licence will need to be periodically renewed and some training may be required prior to the licence being granted. A Club operating under a CPC does not need to have a PLH and does not need to nominate a Designated Premises Supervisor.
The Club will also not be able to install specific types of gaming machines such as the popular B3A and will have to pay corporation tax on revenue received from non-members. Additionally, Members of the public will have an opportunity to object to any request by the Club to be used with a Premises Licence. It is therefore reasonable to say that there are increased costs by having a Premises Licence.
A Club Premises Certificate allows you to serve alcohol to Members and their guests which comprise the largest number of patrons that any Club has, regardless of the licence held by the Club. If the Committee is considering a Premises Licence I think a fair question to ask is how many additional people will come into the Club should such a licence be obtained. What Clubs typically find is that if people did not wish to enter the Club as a guest of a Member then it is unlikely they will enter the Club on their own as a member of the public. This does slightly depend on the characteristics of the Club and the facilities provided by the Club.
Committees often see a Premises Licence as a silver bullet which will instantly make the Club a popular destination for people to visit. In reality it is fair to say that most Club’s Membership fees are not highly priced and that if there was a genuinely wish by a section of people who to use the Club’s facilities that they would have already become Members.
Clubs which typically obtain Premises Licences are ones which hold a large number of private events each year, far more than the 12 allowed via TENS, and for whom being able to hire out parts of the Club privately is a good source of revenue. I suggest that the Committee examines whether the Club falls into this category regarding events.
Q We have an employee who has been employed with us for 15 months. Can you clarify the current legislation concerning whether, if they are dismissed, they could claim that they were unfairly dismissed and take the Club to an employment tribunal?
A The general rule of thumb is that if an employee has commenced their employment since April 2012 that they will have to have been employed for 24 months before being able to claim that they have been unfairly dismissed although there are some notable exceptions to this rule (dismissals based on sex or race for instance). I can therefore confirm that if they have been employed since April 2012 then the 24 month qualifying period for unfair dismissal claims will apply if they are dismissed for any reason apart from one of the protected characterises - these include dismissals for reasons such as pregnancy or maternity leave, trades union membership, whistleblowing, reporting health and safety risks or assertion of statutory rights.
Q The Committee was recently contacted by a company offering insurance policies and support on health and safety and employment problems. The Committee are interested in what this company had to offer but feel that the package they were offering was quite expensive. Do you have any thoughts on whether Clubs should be paying for these types of ‘support’ policies? The Company said that if we took out the policy they were offering they would provide financial protection to the Club in the event of legal action being taken as a result of an accident at the Club or an employee claiming unfair dismissal.
A Whilst occasionally a Club might be threatened with legal action in relation to an accident which has taken place at a Club (a Member or guest falling or slipping over seem is probably the most common example) I can probably count on one hand the number of times that I have assisted a Club which has actually been involved in a legal dispute over health and safety which was not resolvable during the preliminary stages of action being threatened. I also cannot recall a specific instance of a Club being successfully sued for a health and safety breach although it is likely that it has happened very occasionally.
Employment cases are, sadly, more frequent and are quite common whenever an employee is dismissed from the Club regardless of the merit of the case. There has been a recent change in the law which now means that an employee will have to pay some of the costs of taking a tribunal action against their former employer and as a result I suspect we will see a significant reduction of the types of frivolous claims which employers have previously been presented with.
Whether the Club wishes to take on an external cover for health and safety and employment matters is ultimately one for the Committee to decide. Assuming that the Club’s insurance policy is comprehensive it is likely that you already have some cover for both health and safety and employment matters and the ACC is able to offer significant advice and support to any Club which has a claim made against it. Most Clubs take the view that the coverage provided by their insurance policy along with the ACC’s assistance is sufficient without needing to take on external coverage. It is, of course, worth making sure that the Committee is clear over the level of support which the insurance policy provides and how that support is accessed and utilised if it is required. For instance, it is important to be aware if the insurance company wish to be informed prior to the Committee making a decision to dismiss an employee as this could affect whether the policy will then cover the Club in event of a future claim. The cost of the policy being proposed by this firm is also of importance and we would be interested to know what the quote for coverage is. I think it is fair to say that whilst most Clubs are open to the idea of a comprehensive policy with an external provider that the majority consider the cost for such a policy outweighs the potential benefits the policy may
offer the Club in the future. My understanding is that most Clubs do not have such a policy and that they instead rely on the ACC and their insurance policy for support and advice.
On a final point regarding health and safety, this is an area which the Committee can minimise the risk of a claim by simply being proactive about dangers in the Club and undertaking a regular risk assessment in the Club and taking appropriate action regarding identified risks. Having a well-stocked first aid kit and an accident and injury book is also important and will minimise the Club’s legal exposure. We can provide Clubs with written advice and guidance on how to conduct a risk assessment if requested.
Q Can you let us know if an employee is able to work alone inside the Club? Our cleaner works on her own in the morning prior to the Club opening.
A I can confirm that it is perfectly legal to allow an employee to work alone and that in many Clubs the Club’s cleaner will often perform their duties on their own simply because of when the cleaning takes place. Having said that, the Club does have a duty of care to its employees and if any employee is concerned about working on their own then such concerns should be appropriately addressed by the Committee. In any event, it would be worth performing a risk assessment to assess if there are any inherent risks for an employee working alone (a cellar door which could inadvertently lock an employee inside for instance).
Q The Committee has recently questioned if the Club should have a formal ‘whistle blowing’ procedure in place for employees wishing to report something which is wrong. Do you have any advice as to how such a policy could be formed?
A I am not aware of a Club which actually has in place a specific ‘whistle blowing procedure’. I would suggest that a Member of the Committee, possibly the Club’s Secretary, is simply appointed as a point of contact for the Club’s employees. The Club’s employees should then be encouraged to speak to the appointed contact person regarding any issues which have arisen or problems which they have.
Q Is the Club required to provide a taxi to take employees who are working late home?
A The Club is not required to provide taxi facilities to employees. It may be that the Committee may wish to consider if such a policy would be practical and also engage with the Club’s employees on this issue to see if it is desired by some or all of the Club’s employees. Perhaps the Club could come to an agreement to share the cost of a taxi if there is an employee who is particularly concerned about getting home after their shift. Please note, however, that there may be tax implications on these contributions
I think it is fair to say that most Clubs, and indeed other licensed establishments, would probably not automatically provide taxis to employees after their shifts although invariably there will be local factors (location of the Club, safety of surrounding streets, time at which their shifts finishes) which will influence any such policy.