Still on the subject of employment, a recent email from a reader reminded me of an important case, decided some five years ago, which should still be borne in mind by all operators.
You may have assumed that if you use an agency to supply your doormen, their conduct will be governed by their actual employers, who will be responsible to you for ensuring that they are all correctly badged and do not step out of line.
In fact, prudent operating companies make it a point of the contract between themselves and agencies that it is the operator's responsibility to ensure that adequate insurance cover is taken out by the agency and that their workers remain their employees and are not deemed to be either employees or agents of the club or pub operators.
But the judge in this particular case ruled that the contract itself made no difference. It was what the real relationship was between the doormen and the club management that mattered.
He held that the operator effectively became the door staff's temporary employer while they were working. They wore the club's uniform and were subject to the control and instructions of the club manager. They did what the operator wanted during the time of their employment, so as to fulfil the club's obligations under the terms of what was then a public entertainment licence, together with the local council's regulations.
As a result, when one of the doormen lashed out at a customer during the period of his employment, resulting in long-term injury and brain damage, the club could not rely on the terms of its contract, and the offending doorman was held to be a "temporary deemed employee", making the night-club operator liable to the injured man.
The club's appeal against this ruling was unsuccessful, so it remains a stark warning to those licensees who think they are safe by handing over their responsibilities to an agency.
This ruling means that whoever is on the door becomes your responsibility while he or she is working. The agency appears to be responsible for providing the workers, but after that, the way they do their job is down to you.
This means you must, as a matter of urgency, check that your insurance cover provides adequate protection for the rare occasions when something goes wrong. The claim for this victim ran into thousands of pounds and, as I have previously commented, the case will undoubtedly be referred to in the future.
Q&A
Talent no exemption
Q. A colleague has said that if one part of an audience is entertaining another, such as in the case of a talent show, then we do not need an entertainment licence for live entertainment under the new law. Is this right?
A. No, it is not. Comments in decided cases state that if one section of the audience entertains another, this is public entertainment, so talent contests and competitions of the kind you suggest, if they involve some element of music or dancing, would certainly be subject to provision for regulated entertainment contained in the Licensing Act.
In my experience, most of the entertainment shows put on in pubs (other than events like quiz nights, which do not require a licence) involve some form of musical entertainment. In your own examples, it is likely that there will be music played by a DJ or compere, and possibly some dancing as well, either by contestants or the audience.
Gone are the days when a DJ merely announced the records and played them; today young customers expect a complete entertainment package.
The previous exemption for pubs with two performers or less no longer exists, so even if it is just one DJ and an audience, entertainment involving both live performers and recorded sound requires the premises licence to cover it. So I think you should play safe and apply to the district council for a variation of your licence before they send an inspector round.
How long to drink up?
Q. We have a premises licence that runs until midnight on weekdays and 1am at weekends. Sometimes we close earlier, especially at the beginning of the week. One or two customers have claimed that whether or not we stop serving, we must allow them until the time on the licence to drink up. Is this right?
A. Drinking up is not a right. It is, under any circumstances, a concession granted by the licensee or his authorised agent to permit customers to finish their drinks within a specified time and leave the premises if requested to do so.
The hours contained on the licence summary are not, therefore, the hours giving a legal entitlement to access to the premises. All admission is at the behest of the DPS or his authorised staff, or the holder of the premises licence. Admission may be refused unless certain conditions are met, and persons may be either refused service or asked to leave if they do not comply with reasonable behaviour rules, or are drunk or disorderly.
The hours you open your premises are entirely up to you and cannot be dictated by individual customers. Clearly you would want to give some time after 'last orders' for customers to finish, but you can then tell them to go home in the time-honoured way!
Raffle prize
Q. We run a college bar and have been asked to provide alcoholic raffle prizes for a fund-raising event next month. Do we need to obtain a special licence or permission to have these out on display? They will not be sold, merely offered as prizes. The bar licence covers the sale of drinks to students, staff and visitors.
A. Although technically the provision of alcohol prizes at an exempt event such as yours constitutes a sale of that alcohol, I make two points.
The first is that there is now an exemption for 'incidental non-commercial lotteries', contained in section 175 of the Licensing Act 2003 which has been amended by the Gambling Act 2005. A licence is not required where prizes of alcohol (in sealed containers) are awarded in such a lottery.
Secondly, you already have a licence for the college bar authorising the sale of alcohol. This does not have to be specific in terms of the sales it covers, and appears perfectly adequate to cover this activity.