Diligent approach can protect licence

It’s vital to have a system for dealing with employees that fall foul of the law, say lawyers Jonathan Rennie and Stephen McGowan

TLT Bristol. Jonathan Rennie. 28 Oct 2013
• Due diligence is key in the licensed trade, say Rennie (above) and McGowan (below).

THERE are infinite ways that employee behaviours may jeopardise licensed premises.

Employee actions may breach specific terms of a premises licence and also conflict with the licensing objectives under the 2005 Act.
This is particularly so in respect of preventing crime and disorder, securing public safety and preventing public nuisance.
The good news is that if due diligence measures are in place then premises licence holders ought to be able to show licensing boards that every reasonable measure was taken to reduce the risk of employees infringing licensing rules.

A higher duty of care is expected from a PLH than staff without the qualification.

A good example of this is the recent Lidl case against Glasgow licensing board, where an employee who served alcohol to an underage customer and failed a test purchase resulted in the premises licence being suspended.
The case showed that measures including induction training, refresher training, and operating a ‘Challenge 25’ policy advance the idea that employee failure is ‘human error’ and not a fundamental system failure.
It is also notable that the employee who failed the test purchase was dismissed after a review of CCTV footage.
The employer did give consideration to the fact that the employee was a manager, personal licence holder and was responsible for the training and supervision of alcohol sales by staff at the premises.
The Lidl case is a good example of how diligent training of staff, together with the careful management of an employee disciplinary, helped achieve the commercial objective of preserving the premises licence, and the overturning of the original decision of a five-day licence suspension.
• What happens if an employee jeopardises their personal licence?
Where an employee is a personal licence holder the employer is entitled to expect a higher duty of care than from a member of staff without that qualification.

TLT Bristol. Stephen MGowan at the TLT Bristol offices. 4 Dec 2012

After all, the personal licence regime requires training and provides an industry qualification.
From an employment law perspective, where an employee’s actions result in the loss of their personal licence then there is a strong argument to say that they are in breach of a statutory restriction. It might be appropriate to commence a dismissal process on this basis.
An analogy can be drawn with an HGV driver who loses their driving licence and the impact that has on job performance.
Looking again at the Lidl scenario, if the staff member had their personal licence revoked the employer may very well commence disciplinary proceedings for conduct reasons.
They then have the additional argument of statutory restriction to emphasise the seriousness of the situation.
This dual approach assists the employer to advance a fair dismissal, as it provides additional reasons for exiting the employee, albeit a fair process still needs to be followed through.
• How can we manage the balance between licensing laws and employment law?
Clearly, there is a commercial balance to be struck between protecting the premises licence and managing employee relations. It will often be the case that business revenue dictates that the licensing issues will be the priority.
It is evident from the Lidl case that the careful management of employment issues restricts the potential for employment tribunal claims, and meets the commercial objective of protecting the premises licence. This is recommended best practice.
The Lidl case is also useful in showing that the licensing tests will look at “all the circumstances” of the licence infringement.

Evidence of due diligence can help preserve the premises licence.

That is a similar approach to how an employment tribunal will assess the reasonableness of an employee dismissal.
The consistency and overlap in approach between both legal forums is helpful for employers to have in mind when managing employees who are jeopardising the premises licence.
• Jonathan Rennie is a director and employment law specialist and Stephen McGowan is a director and head of licensing (Scotland) at law firm TLT.