Legal advice: Pubs' responsibility for agency doorstaff

Case redefines pubs' liability for door supervisors.

By Niall McCann of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

Many moons ago, a woman called May visited a café with a friend and chose to drink a bottle of ginger beer. Then, to her horror, she discovered a snail in the bottle. She thought that where there is blame there must be a claim.

The difficulty was, however, in those times of old, there was no duty of care owed to your neighbour and a direct contractual relationship between the claimant and defendant was required to successfully bring a claim.

Given that it was her friend who had bought the ginger beer, but May who had suffered the consequences, the chances looked bleak. However, May took the matter to court and, in a landmark ruling, the law of tort was properly established.

Essentially, the law of tort covers civil wrongs which are caused by someone who has breached a legal duty. One variety of tort is that of vicarious liability, whereby a person is not only liable for torts he has committed, but also for those he has authorised, such as an employer being liable for acts of employees.

This is quite a burden and numerous claims have been successfully brought even when the stupidity of the employee beggars belief. Take the example of a petrol tanker driver who, while refilling an underground tank, lights a cigarette and throws away the match, resulting in an explosion. Would the employer be liable?

But are they employees?

At this point, a licensee reading this article might be nervously considering which of the people who work at his premises are employees. The good news is that door supervisors are usually employed by an agency and will therefore not be regarded as his direct employees. The bad news is that a recent case has developed the law further as far as doorstaff are concerned.

In this case, a nightclub operator was successfully sued following the claimant's assault by a member of the doorstaff outside the club. While the door supervisor was employed by a security services company, the degree of control exercised by the nightclub operator was sufficient for the door supervisor to be seen, for the purposes of vicarious liability, as a temporary employee.

This ruling creates a further hurdle for premises requiring door supervisors. It comes at a time when doorstaff in every region of the country are required to have a licence issued by the Security Industry Authority (SIA) and use of unregistered doorstaff is an offence. Additionally, the Licensing Act 2003 provides that where premises require door supervisors, they must be licensed. If such a condition is not adhered to, the holder of the premises licence will risk prosecution and having his licence revoked.

As some of you may now be experiencing, demand for door supervisors outstrips supply. So when obtaining licensed doorstaff becomes an impossibility, do you shut up shop or risk breaching your licence? As a lawyer, I would recommend the former, but neither choice is appealing.

In an attempt to ease the growing burden on licensees in London, the SIA and Metropolitan Police have stated that until June 6, 2005, a fair and proportionate approach will be taken towards door supervisors who have made every effort to comply with the SIA commitment by applying for their licence.

However, they must have already acquired a local authority badge for the area in which they operate. Thus we have a rather unsatisfactory state of play vis-à-vis, dare I say it, the supervision of door supervisors.