Can you dismiss an employee who doesn’t refresh their personal licence? It depends on their contract, writes lawyer Ben Thornber
IN the world of alcohol licensing, the rules about personal licence holders have been in place since September 2009.
Each personal licence is valid for ten years but must be ‘refreshed’ every five years.
Personal licence holders who obtained their licence on or before September 1, 2009 must have undertaken refresher training by August 31, 2014 or their personal licence will be revoked and they cannot apply for a new one for five years.
This will affect designated premises managers and persons engaged to work after 1am as personal licence holders for any premises.
If the contract is silent on renewing the licence, as the employer you have a problem.
If you own licensed premises, is it your obligation to ensure the licence is renewed or is it the responsibility of the member of staff who holds the personal licence?
The answer is simple: if it is clear in your contract of employment that it is entirely the responsibility of the personal licence holder to take the exams and pay for renewal, and that this is a condition of employment, you would be entitled to dismiss the employee if he/she failed to renew the personal licence.
But the contract must be clear about this – and be explicit about the consequence for failure to renew.
If, on the other hand, the contract is silent about who is responsible for renewing the personal licence, or you do not have a contract in place, as the employer you have a problem.
Even though the individual has personal responsibility not to sell alcohol without a valid licence, failure to renew the licence does not mean you can dismiss.
If you went ahead and dismissed the employee for failing to renew, that dismissal would almost certainly be unfair if the employee has been with you for over two years. Unfair dismissal claims in the employment tribunal can result in awards of up to one year’s pay (although there may be reductions for contributory fault depending on the precise circumstances).
Yet if you do not dismiss, you would end up continuing to employ and pay someone who cannot carry out the role – and maybe having to pay someone else who does hold a valid personal licence.
Neither of these options are appealing.
To avoid problems, you should check the renewal date of all personal licence holders on your staff (ten years from date of issue) and diarise the refresher (five years from date of issue), check the personal licences of the people you are employing, check your contractual documentation, and ensure your licence holders pass the exams in good time for renewal.
Unless your contract says otherwise, you will have to pay for the renewal process.
If you have personal licence holders on maternity leave at the time of renewal, act early and make sure everything is in place in good time.
Once you have done all this, you might want to think about changing your contract so that the responsibility becomes the licence holder’s next time.
But that’s for another day. Act now to get this sorted and don’t get caught out.
• Ben Thornber is managing director of Thornber Employment Law.
