Licensing@aol.com
Smoking breaks for staff
Q Now that the new anti-smoking law is in operation, is it permissible to allow staff a smoking break during their shift?
Q Nothing in the Health Act actually prevents smoking, as long as it takes place in an area that is not "smoke free". This applies equally to staff and customers.
So if you have a smoking shelter, or private residential accommodation for members of staff, they can smoke there. But they cannot smoke in the enclosed areas to which customers have access.
The question of smoking breaks is a separate issue, more to do with employment rights and obligations. If it has been customary to allow smoking members of staff a break for a cigarette, removing this allowance could be considered a variation of the employment conditions, albeit a very minor one. Non-smoking staff could, of course, claim that they receive no similar dispensation and that it is unfair.
However, it would be inadvisable to cancel smoking breaks entirely without consultation and discussion. Depending on the length of shift, it might be unreasonable to insist that no smoking takes place anywhere during employment and this might lead to a claim for constructive dismissal. Allowing smoking breaks is a matter for the employer to determine, after hearing the views of employees.
Dog day afternoon
Q We have a number of customers who like to bring their dogs to the pub. My question is: if a customer is bitten as a result of some incident, could he sue me as the licensee? We have a dog of our own, but he is not allowed in the bar.
A I would consider it extremely unlikely in normal circumstances that a customer could sustain a claim for damages against you or your insurers for injury resulting from his own or a third party's negligence.
The situation would, of course, be different if the dog was your own. You would then have a duty to ensure, as far as was reasonable, that it remained under control and did not injure persons who were likely to be on your premises.
This might not apply merely to your customers but also to cases of trespass. And, as many landlords know, you have certain obligations under the legislation that controls dangerous dogs.
In the circumstances you describe, however, even if the dog belonged to you, it would be difficult to see a court finding against you, unless the animal was known by you to be dangerous and you carelessly allowed it into the bar. If the negligent action was that of the customer who, for example, stepped on to the dog, provoking a reaction, then you could not be held liable. It is not normally possible successfully to sue someone else for the results of your own negligence.
Doubling up a DPS
Q Is it possible to have two designated premises supervisors (DPS), one for the day shift and one for the evening?
A The Licensing Act merely provides that there should be a named person who holds the position of designated premises supervisor, and that no sales of alcohol may be made when there is no DPS in existence. But there is no provision under the current law for two persons to take on such responsibility for different parts of the day.
You are free to appoint a day manager and a night manager, both holding personal licences, who undertake a supervisory role. But in terms of compliance with the Act, only one of them can be named as DPS.
