By Rob Biddlecombe, a specialist in environmental, safety and health law at Squire Patton Boggs (www.squirepattonboggs.com)
Earlier this month, three people were injured, including two women who received serious burns, after an explosion involving a gas heater in the beer garden of the King’s Head in Great Cornard, Suffolk. It has been alleged that an intoxicated customer kept filling the heater with ethanol and eventually sprayed ethanol from a spare bottle on to the heater’s naked flame as a prank, causing the bottle to explode. A statement on the pub’s Facebook page stated that the heater was not one supplied by the pub, and was brought on to the premises without their knowledge.
After months of lockdown, customers are naturally excited by the prospect of being able to return to socialise in pubs. However, what steps should be taken by pub licensees/designated premises supervisors to prevent exuberant behaviour from escalating to a point when people’s safety is threatened?
Under the Health and Safety at Work, etc. Act 1974, employers have a duty to ensure, so far as reasonably practicable, the health and safety of their employees and also of anyone else who may be affected by the employer’s business, such as visitors. Risk assessment is the cornerstone to effective health and safety. In fact, employers are required under the Management of Health and Safety at Work Regulations 1999 to assess the risk posed to their employees at work and to others who may be affected by the employer’s business, and to put appropriate control measures in place. In other words, although pub operators are not expected to produce risk-free environments for staff and customers, they are expected to reduce foreseeable risks as low as reasonably practicable. It is a criminal offence not to comply with health and safety law.
Clearly, not all risks to health and safety will be foreseeable to licensees, but the risk posed by the actions of intoxicated customers should be. It is incumbent on licensees to have arrangements in place both inside and outside of the building to identify individuals who may be posing a risk to others. Depending on the type of establishment and its location, this may not necessarily require a door supervisor on the entrance or CCTV covering every possible inch of the premises, but it is likely to require staff to actively monitor behaviour and be prepared to take proportionate action to reduce the risk, rather than simply ignoring it.
It is also worth remembering that the sale of alcohol to a drunk person is an offence under the Licensing Act 2003; and that licence holders must promote public safety and the prevention of crime and disorder (as two of the licensing objectives). Where these objectives are undermined, this could be grounds for a review of the premises licence, which could ultimately result in suspension or even
revocation of the licence. Supervision and management of customers is an important part of ensuring licence compliance and there may, of course, be specific licence conditions requiring CCTV, door super- vision and/or regular clearing of glasses, particularly in outdoor areas.
Leadership is a key aspect of health and safety management and the direction set by the licensee is essential; they must lead by example and staff should be confident that they know what to do if they become aware of a customer who is posing a risk to others.
Clearly, no licensee wishes their customers to feel as if they are constantly under surveillance and can- not relax, but a balance must be struck so that they also feel safe and can enjoy the easing of restrictions. Changes to operation brought about by the pandemic, such as greater use of outdoor areas by customers, should be considered as part of updated risk assessments on reopening, alongside the typical risks associated with licensed premises, to help strike that balance.