Clarification on Act's under-18 rules

Recently I have had a number of enquiries regarding young people being employed in licensed premises, and in particular if they work in the bar whether they can actually sell alcohol. Two of the letters show a misunderstanding of the law, so it is best if I start from scratch with this, and explain how the new Licensing Act differs from the old one.

First of all, the prohibition on young persons under 18 working in a bar has disappeared. Previously, junior staff could do no work when the bar was open. They could stock up and clean outside permitted hours, but were prohibited from carrying out any duties when the bar was serving. This included the children of the licensee. Now, there is no such restriction. Both employed youngsters and the children of the person running the premises can freely work in the bar. Attention has to be paid to any local bye-laws restricting the employment of children of school age during term time.

What about selling drinks? Even this is now permitted, in line with the procedure that has existed in supermarkets for some time. Care must be taken to comply strictly with the law, or you risk problems with the licence.

The new requirement is that if a person under 18 is actually selling alcohol on the premises, each and every sale must be specifically approved by what is called a "responsible person". This does not mean a general approval, given at the beginning of a shift. It means something similar to the supermarket system, where a junior check-out cashier alerts the supervisor to the making of a sale of alcohol, which has probably been flagged up on her screen.

The responsible person who gives the approval may be any one of the premises licence holder, the designated premises supervisor (DPS) or another member of staff who is over 18 and who has been authorised to give this approval, either by the DPS or the premises licence holder.

In the case of tenants or lessees employing their own children, that approval is likely to come direct from them, as they will be the DPS and will usually be in the bar. But if they leave the bar under the control of another member of staff, strictly speaking they should specifically give the authorisation to that other adult.

This, of course, makes it difficult to employ someone under 18 as a normal member of the bar team, because they need a "minder" all the time. It will only come into play if, during the course of other work such as serving meals, they are asked for drinks.

They can fulfil that order, even in the bar, as long as they first approach a responsible person for approval. Once that approval has been given, then they can pull a pint or pour a glass of wine just like any other member of the staff.

The real legal conundrum comes with the question: is the responsible person approving the seller or the actual sale? In other words, who decides on other issues, such as the age or condition of the purchaser. If they are under-age or drunk, then an offence is committed by the person making the sale. Who is that?

Currently my view is that as many of these orders may be appropriated in the bar without the actual purchaser being present, the responsible person is merely authorising the underage seller, not the sale itself. The sale is being made by the junior, clearly under the Act, and so he or she is the one who could be prosecuted.

Another section of the Act covers "allowing" the sale of alcohol to those underage, so that if it could be shown that the DPS was careless in what type of sale he permitted, he could be charged under this section.

So using under-18s as members of bar staff is now allowed, but it presents great difficulties. Be very careful to make sure that the instructions which you give to all those involved are clear and understood, so that you do not fall foul of the law.