Is the customer always right when it comes to Alcohol and Pregnancy?

A recent post on the popular social networking site Reddit has generated a great deal of media coverage and online debate  on personal accountability and the rights of serving staff when it comes to alcohol. The post described the experience of a member of staff serving alcohol to a group of people of which one was pregnant.

When the group, including the expectant mother, ordered a number of rounds of alcoholic cocktails, a member of staff decided to take matters into their own hands and replaced the pregnant woman’s drinks with non-alcoholic versions. The ‘switch’ was only discovered when the bill arrived which noted that the drinks were non-alcoholic. The pregnant woman was so furious that it resulted in the server being suspended from work.

The incident raises some important ethical questions: was the server right to take matters into their own hands?  Is it down to the customer, pregnant or not, to choose what she drinks? Is it legal for pregnant women to drink more than the recommended amount of alcohol, and can serving staff legally refuse to serve alcohol to a customer if she is pregnant?

Larna Mason, Legal Adviser at DAS Law, explains what the law says in this situation…

 Can serving staff legally refuse to serve alcohol to a customer?

Any premise that requires a license to serve alcohol has the ability to refuse service, and it is up to the licensee to accept or refuse a patron’s custom. However, under discrimination laws in the UK  it is unlawful to discriminate in providing goods or services to a patron on grounds of race, disability, gender, sexual orientation or religion.

 What is the legal position on not giving a customer what they ordered?

Under the Consumer Rights Act 2015 goods should be ‘as described’.  If the cocktail was advertised as including alcohol then, contractually, the customer should have been served an alcoholic cocktail.

If the customer was charged the same price for the non-alcoholic cocktail, then the customer could argue that she should be entitled to a refund for the difference. However, if the customer paid a reduced price, and therefore did not suffer any financial loss, then the customer is unlikely to be able to pursue a breach of contract claim.       

 What are the rights of the unborn baby?

Generally, a pregnant woman is entitled to make her own decisions in relation to her unborn child.  Even if the child suffers with Foetal Alcohol Syndrome as a result of the mother’s drinking in this case, it would not usually be able to make a legal claim against her.

 Does the server have an unfair dismissal claim?

In order for a dismissal to be fair, an employer has to follow a fair process and the decision to dismiss needs to be a reasonable response to the conduct.

Assuming the server does not have any prior warnings on file, the employer in this case would therefore have to justify a ‘Gross Misconduct’ dismissal.  This means the employer will have to show the server’s behaviour was so bad, the employer cannot be expected to employ them any longer and their conduct amounted to a fundamental breach of the employment contract.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created.