How to handle test purchase fall-out

Employers should establish the facts before considering any disciplinary action against an employee, writes employment lawyer Ben Doherty

Test purchase operations are conducted in partnership between police and trading standards officers to crack down on retailers that sell alcohol to under 18s.

Failing a test purchase can have serious consequences for licensed premises, however it may also have serious consequences for the employee responsible for the failure.

• Failing a test purchase can have serious consequences for an employee, says Ben Doherty.
• Failing a test purchase can have serious consequences for an employee, says Ben Doherty.

Due to the possible serious licensing law consequences for the licensed premises, it is likely that the employer will be able to take disciplinary action against the employee responsible for the failure, and that the disciplinary sanction imposed could be up to and including summary dismissal.

So what steps should an employer take when dealing with such a situation?

• Step 1:  investigation.

The employer should establish the facts before deciding whether to proceed to a disciplinary hearing. In this case the failed test purchase documentation will form the basis of the investigation. However the employer should also meet with the employee to obtain their version of events and take minutes of that meeting. It might also be appropriate to speak to any other witnesses and check CCTV footage.   

• Step 2: invite the employee to a disciplinary hearing.

If there are grounds for disciplinary action, invite the employee to a disciplinary hearing. In the letter, set out the allegations against the employee; by way of example: “It is alleged that on August 6, 2015 in breach of our licence to sell alcohol and the mandatory challenge 25 policy you sold alcohol to a customer who was 16 years of age. Doing so resulted in the premises failing a test purchase”.

The letter should also state the basis for the allegations and the possible disciplinary sanctions the employee may face if the allegations are found to be true. Also, provide the employee with details and copies of the evidence which you might refer to during the disciplinary hearing. Finally, advise the employee that they have the right to be accompanied to the hearing by a co-worker or trade union representative.

• Step 3: disciplinary meeting.

At the start of the meeting introduce everybody present and explain their roles. Normally it should be chaired by a manager who has not been involved in the investigation. If the employee is not accompanied ask them to confirm that they have chosen not to be accompanied. Explain what the allegation is and ask the employee to confirm that they understand it. Then ask the employee for their response to the allegation. If their response does not make sense or lacks credibility, ask for clarification or challenge them about the lack of credibility. If new information is provided it may be necessary to adjourn the hearing to enable further investigations to be completed.  However if no new information is provided, adjourn the meeting and then consider your decision.

• Step 4: communicating the decision.

The next step is to send the employee an outcome letter stating your decision. That decision is in two parts: did the employee commit the offence and, if so, what sanction is being imposed. When reaching that decision consideration should be given to the nature of the allegation, how the employee responded to it, their length of service and disciplinary record. The letter should also inform the employee of their right to appeal.

• Step 5: appeal.

Any appeal should be dealt with impartially by someone not previously involved in the case. Again, the employee has the right to be accompanied. The employee should be given the opportunity to explain their grounds of appeal and why they think the outcome should be different. Once the appeal is finished the employer should inform the employee whether the appeal is upheld in full, or in part, or whether the original disciplinary hearing decision is upheld. The outcome letter should be detailed, including providing reasons and justification for the decision.

Finally, given the nature of the allegation and the possibility that this will lead to the review of the premises by the licensing board, it is relevant to note that the board will be interested in the action taken against the employee responsible for the failed test purchase.

Ben Doherty is partner and head of the employment team at Lindsays.