- Door Staff and Vicarious Liability
- Minor Variations and Village and Community Halls
- Amendments to The Sex Discrimination Act 1975 (Amendment) Regulations 2008: Increased Rights for Women on Maternity Leave
- Fire Safety
- Using Sky domestic cards can lead to prosecutions
Door Staff and Vicarious Liability
If your business employs door staff, it is of the utmost importance to ensure full insurance cover is in place; even if staff are supplied by an independent contractor.
In the case of Hawley v Luminar Leisure plc,the Court of Appeal held that nightclub owners, Luminar Leisure plc, were vicariously liable for the actions of a doorman who was employed by their security sub-contractors (ASE Security Services). The doorman, who deliberately struck the Claimant David Philip Hawley, caused him serious head injuries and permanent brain damage, was employed by ASE Security Services, who were employed by Luminar plc.
Luminar was deemed a temporary employer and vicariously liable for the actions of the employed by the door staff; despite no direct contract of employment between the two parties. The contract between Luminar and the independent supply company (ASE Security Services) stated the doormen “will be employees of the security organisation and nothing in this agreement will be deemed to render any of them employees, agents or partners of Luminar”.
Based on the facts presented, the Court decided that because the door staff wore Luminar uniforms, were subject to Luminar's Code of Conduct, and received instructions from Luminar's Club Manager, there was an effective transfer of control and responsibility from the supply company (ASE Security Services) to Luminar.
The consultation process on the proposal to amend the Licensing Act 2003 has ended. The Department for Culture Media and Sport (DCMS) is now seeking comments on the proposals to provide for a new ‘minor’ variations process.
A summary report of the consultation responses, together with copies of all the responses, was published on 20 May 2008. Please click here to read the summary report.
New regulations are set to be introduced before the end of the year and will include:
- A quicker and more cost-effective process for minor variations of Premises Licences and Club Premises Certificates
- The option for Community Halls to sell alcohol without the need for a Designated Premises Supervisor.
The new procedure for minor variations does not apply where:
- The variation is the addition of the sale or supply of alcohol to a Premises Licence or Club Premises Certificate
- The extension of sale or supply of alcohol to hours between 11pm and 7am
or
- An increase in the amount of time on any day when alcohol may be sold or supplied.
Minor variations are those which do not impact adversely on the promotion of the licensing objectives. The Licensing Authority (LA) will judge if the application meets the criteria. There is no appeal process against an LA decision, therefore, a rejection by the LA, means a full application will have to be made.
The LA will consult (as necessary) with relevant authorities such as the police, fire, environmental health and trading standards. Residents will not have the right to object. The fee is likely to be £73 and the LA must give a decision within 10 working days. The process will cover small variations to the layout of premises which:
- Do not increase the capacity for drinking
- Do not affect access between public areas, outside areas, and the rest of the premises
- Do not block or restrict emergency routes/exits
- Do not impede the effective operation of noise reduction measures.
The government has also made it clear that, unless there is likely to be an adverse impact on the licensing objectives, the process will include applications for the addition of live music. Despite this proposal, it is unlikely that more aggressive LAs and relevant authorities (the London Police, for example) will allow live music to be approved on minor variation applications.
Under the new proposals where sales of alcohol are authorised, community premises (including village and church halls) will be allowed to remove mandatory conditions requiring a designated premises supervisor and the requirement that the sale of alcohol has to be authorised by a Personal Licence holder.
Responsibility for authorising and supervising of the sale of alcohol will pass to the management committee. It will be necessary to provide evidence of the organisation and procedures for controlling the sale of alcohol. This will include any arrangements through hiring agreements, thus ensuring the hirers of the premises will have delegated responsibility for sales of alcohol.
Applications can be made when applying for a new Premises Licence or to remove the mandatory conditions from an existing licence.
Amendments to The Sex Discrimination Act 1975 (Amendment) Regulations 2008: Increased Rights for Women on Maternity Leave
Amendments to the Sex Discrimination Act 1975 and the Equal Pay Act 1970 will apply to women whose expected week of childbirth begins on or after 5 October 2008.
The purpose of these regulations is to extend to employees on Additional Maternity Leave (AML the second 26 weeks of leave) the same rights that exist during Ordinary Maternity Leave (OML). This will cure the current anomaly that employees’ statutory right to their terms and conditions applies only during OML and not AML.
From the 5th October 2008, an employee’s benefits will continue throughout maternity leave. Benefits may vary due to employer, but most will include:
- Annual leave
- Pensions
- Health club membership
- Private use of a company car.
Employees denied this entitlement, will be able to bring a claim of sex discrimination against their employer.
In addition, the government is also considering giving women returning from AML a right to return to the same job. Employers would no longer have the option to offer an alternative job if it is not ‘reasonably practicable’ for them to return to their original job.
Ensuring a fire safety risk assessment has been undertaken is essential for businesses to comply with the Regulatory Reform (Fire Safety) Order 2005.
The Fire Safety Order applies to all non-domestic premises in England and Wales. Under the Order, if you are:
- Responsible for business premises
- An employer or self-employed with business premises
- Responsible for a part of a dwelling where that part is solely used for business purposes
- A charity or voluntary organisation
- A contractor with a degree of control over any premises
you must (or ensure the designated individuals responsible) undertake the necessary fire safety risk assessment, record, review and undertake any required work, and maintain a fire management plan.
In a recent case, a Berkshire licensee was fined nearly £8000 (inclusive of costs) for 10 offences including having no fire risk assessment, no fire alarm system, no fire- drill training for staff, and no working emergency lighting.
It is all too easy to overlook this requirement now that the responsibility for checks rests with the operator of the business, rather than the Fire Authority.
Using Sky domestic cards can lead to prosecutions
There is a high risk of prosecution and substantial fines for those tempted to use their Sky domestic card to screen sports events at a business premises.
FACTS (Federation Against Copyright Theft) are rigorously pursuing prosecutions under the Copyright Designs and Patents Act 1988 with a maximum fine of £5000 for each offence.
Several visits to the premises in question are usually made to gather evidence. As a result, each prosecution often involves more then one offence, thus increasing the total fine.
With a fine of around £1500 per offence (exclusive of costs), a business owner (if prosecuted) can expect to pay at least £5000 in fines and costs. One operator recently had to pay in excess of £20k in fines and costs.
In addition to prosecution and fines, it is likely the Personal Licence will be revoked by the magistrates when imposing the fine. There is also the possibility of a civil action to recover fees.
The threat of a criminal record, heavy fines, and loss of a Personal Licence should be enough to deter those tempted to bypass the cost of a Non-Domestic Viewing Agreement.
The Hotels & Leisure Team
The Withy King Hotels and Leisure team contains experts from many fields to provide you with comprehensive and appropriate advice and guidance on all the legal aspects that you may face within the hotels and leisure industry. Please click here for more information about the team and the services we offer.
