Ignorance is not an excuse

By Peter Coulson

- Last updated on GMT

Related tags: Unfair dismissal, The sale, That that is is that that is not is not is that it it is

Coulson: know the rules on jobs
Coulson: know the rules on jobs
Not following the rules on employment law can be expensive, says Peter Coulson.

A few years ago I reported on an expensive unfair dismissal claim in East Anglia, which contained the immortal line "when they bought the pub they did not understand the sale to include any staff contracts".

Although that case made the headlines, I remain convinced that it did not penetrate the consciousness of all readers, because the issue still arises. It is called TUPE — the transfer of undertakings protection of employment regulations. If you sell a pub as a going concern, you must take account of staff. You cannot just line them up and say "I do not need you" without facing the legal consequences.

The issue is not just confined to major pub takeovers. It applies to any business that is being sold and it should form a part of the instructions to solicitors and/or agents prior to exchange of contracts, or certainly prior to completion.

It is a two-way responsibility. The seller may need to make staff redundant, which he is entitled to do if he is giving up the business. But if he does enter into redundancy agreements, he must pay up, whatever the future situation is for those staff members.

As for the incoming owner, unless there has been a clear agreement to the contrary he must take on all the existing staff. If he then decides he does not need them, because of a change to the business, then it is he who needs to go through the proper processes — and he will owe all the accumulated rights from the previous employment.

You cannot turn Nelson's eye to this. I am sure that some pub employees do not know their rights and may just turn away. But some will not, and that's when you will end up with a bill for unfair dismissal.

Employment rights are being strengthened every year, and it is quite foolhardy to ignore them. Most of the main obligations will affect your relationship with all staff, including part-timers.

I hear too many stories, particularly about maternity, regarding female staff prevented from returning. You may well have filled the position, but that does not mean you can ignore the returning worker's clearly-established rights.

If you do fill a position during maternity leave, you are allowed to explain the situation to the person hired, so that they understand they must step aside if the employee returns to work and cannot make a claim themselves.


Appointing a deputy

Q. Someone has told me that you wrote recently about a deputy designated premises supervisor. Our local police officer says that when I am away on holiday I should appoint someone to take over the role of DPS and should let them know who he is. Do I have to advise the licensing office

as well?

A. This question requires a careful response. First of all there is no such thing as a deputy DPS or holiday DPS. There can only be one designated premises supervisor, who holds a personal licence. He can delegate his responsibilities, but not his role.

I think your local officer is

re-inventing the law a bit, to imply that holiday leave must be notified, although if he is merely suggesting that he needs to know who is actually in charge while you are away, then I can see no harm in that. Any suggestion that it is some form of requirement to appoint an actual stand-in and to notify the council or the police in advance is not legally valid.

Good liaison with local officials is important, so an email or phone call can do no harm and does in fact show due diligence.

After-hours funding

Q. There has been a debate between me and some cricketing regulars about their kitty for drinks on special occasions. If the fund is not finished when the terminal hour is reached, can drinks continue to be supplied, because they have effectively already been "paid for" during licensed hours? We have already agreed that the actual consumption is OK, but it is the pouring of the drinks that we are not sure about.

A. And it is this last point that gives you the answer. What happens at this point is that the alcohol is "appropriated" to the sale, and this signifies when the actual sale is made. Prior to that, all that has happened is that an amount of money has been provided for an indeterminate number and type of drinks, and no sale has actually taken place.

When the order is placed to

the barstaff, and they move to fulfil that order, the contract is made, and the timing of that is the critical point.

The situation has of course been confused by the abolition of drinking-up time, so that consumption outside the hours stated on the premises licence is not technically illegal. But the sale of alcohol during that time most definitely is.

The staff should be under

strict instructions to fulfil no more orders when the cut-off point is reached.

Clearly, if a temporary event notice is in place, hours can be extended for special parties beyond those stated in the licence. But otherwise, sales should stop.

TENs and machines

Q. Clubs around here sometimes apply for temporary event notices to allow non-members to use the club for an event, ie members of the public. If this is the case, can they still use their jackpot machines during these events?

A. Under the terms for registration for jackpot machines, many of which are still covered by the Gaming Act 1968, the machines must not be made available for play "when the public have access to the premises, whether on payment or otherwise".

There is no definition of what constitutes members of the public, but it is clearly not guests of members, or visitors admitted under the rules (ie members of other clubs or sporting teams). However, if the club runs an open event, with tickets on the door or by prior application, then persons attending may well be considered members of the public.

However, if the machines are contained in the bar area of the club, and that is restricted to members and guests, with the public event being held elsewhere, then it could be argued that members of the public are not being given access to the premises where the machines are, and cannot play them. This may therefore be in order.

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