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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: PhilB on May 16, 2008, 02:55:29 PM
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When serving notices on a company, the notice should be served on the company secretary. i.e the notice is posted or handed to the company secretary.
But the responsible person, as defined in article 3, is the employer i.e the body corporate or company, not the responsible person.
Several brigades have recently served notices that could not be enforced becuse they have been made out to the company secretary, rather than the body corporate.
An officer of the company could be prosecuted as well as the company if the company's failings were due to his personal failings.
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3. In this Order "responsible person" means—
(a) in relation to a workplace, the employer, if the workplace is to any extent under his control;
(b) in relation to any premises not falling within paragraph (a)—
(i) the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not); or
(ii) the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking.
Im sorry, I fail to see how article 3 refers to a corporate body. I feel this is strengthened due to the fact that there is no definition of employer within the RRO.
There is always somebody, or even a collection of people who have ultimate control. I have never seen a corporate body referred to as "him" before.
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the responsible person is the employer, the employer is the body corporate.
article 32(8) may help you understand..."(8) Where an offence under this Order committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of that offence, and is liable to be proceeded against and punished accordingly."
does that help?
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Yes totally, thanks Phil.
That is pretty much what im saying. In fact I am struggling to think of a situation where you could not hold somebody accountable.
Any ideas?
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Thats not the definition of the responsible person though, to where a notice would be served.
The company secretary is not a responsible person.
If it is a limited company all notices and enforcement action will be taken against "bodies corporate"
The correspondance relating to bodies corporate is ADDRESSED to the company secretary so that it lands on his or her desk - but it wouldn't necessarily be the company secretary in the dock if something went to court.
The Company Secretary ensures that an organisation complies with relevant legislation and regulation, and keeps board members informed of their legal responsibilities.
Company Secretaries are the company’s named representative on legal documents, and it is their responsibility to ensure that the company and its directors operate within the law.
Yes I totally agree, however you cannot take a piece of paper to court!
No, the company secretary or director would represent the company in Court but the company would be prosecuted.
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Yes totally, thanks Phil.
That is pretty much what im saying. In fact I am struggling to think of a situation where you could not hold somebody accountable.
Any ideas?
Yes many situations, when the failings are a corporate failing and not attributable to any one individual.
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please may I have an example
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3. In this Order "responsible person" means—
(a) in relation to a workplace, the employer, if the workplace is to any extent under his control;
(b) in relation to any premises not falling within paragraph (a)—
(i) the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not); or
(ii) the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking.
Im sorry, I fail to see how article 3 refers to a corporate body. I feel this is strengthened due to the fact that there is no definition of employer within the RRO.
There is always somebody, or even a collection of people who have ultimate control. I have never seen a corporate body referred to as "him" before.
FSO
As PhilB has said there have been several occassions where Fire Authorities have incorrectly served notices on named individuals instead of "body corporate".
This small error can have huge implications - if a notice is incorrectly served it has no legal standing and can be challenged.
Furthermore I have known some crafty companies deliberately letting this go all the way to court knowing fully that the Fire Authority has incorrectly served the notices. They then pull the "youve served it on the wrong person" trick out the hat.
This means the case gets kicked out, makes the fire authority look incompetent and in some cases the authority could also be sued, or left to pay court costs let alone deal with a very cheesed off magistrate who's time has been wasted.
A company secretary is not a responsible person. You have to appreciate that in English Law a limited company body can collectively be classed as a responsible person.
This means all controlling directors of that limited company bear an equal burden of responsibility.
If you have a company with say 12 directors, who have a chain of over 150 stores across the UK, how on earth do you pinpoint which one has the most control over the company or most responsibility for say the issue of fire safety? How can they possibly oversee the day to day management of all 150 stores?
Is it the MD? is it the Cheif Exec? Is it the area manager? Has the Cheif Exec devolved some repsonsibility for safety issues to say the Operations Director? It goes round in circles and each director may have an individual argument as to why they arent responsible.
THe MD might say, "Yes I am the person overall in charge of this company but I passed the responsibility for health and safety onto the Operations Director - afterall I cant possibly manager or oversee everything so i delegated this responsibility to him"
You can see how much of a headache it could become to pin someone down who is overall responsible. This is why with limited companies the body corporate is classed as the responsible person.
All the company secretary does is act as a point of contact / representative of that company / corporate body. He or she alone is not completely responsible for any offences that have been committed.
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You're not so daft are you Retty?
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Oh you know... I try!
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Thank you for your detailed reply Retty.
I fully agree that the company secretary is not the responsible person. You have answered the question quite clearly for me when you state that somebody has more control but they passed on the responsibility of health and safety.
Obviously this person is within their rights to do this, however they cannot delegate their accountability. this is made very clear within the HASAWA 1974.
There will always be somebody responsible, the only reason why notices get served incorrectly is down to poor investigations by the fire authority. Of course dont forget to possible surfaced charges from vicarious liability.
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There will always be somebody responsible, the only reason why notices get served incorrectly is down to poor investigations by the fire authority. Of course dont forget to possible surfaced charges from vicarious liability.
No FSO, sometimes it is just an admin error, as Retty correctly pointed out. If the notice is made out to the company secretary it is likely to be invalid and may result in substantial costs being awarded against the FRS.
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Yes I fully agree with what you are saying!!
If the FRS have done their investigation properly it can be served on the correct person, I appreciate it is easier to serve it on the company but that defeats the whole object of health and safety legislation.
Im sorry mrs smith, your son died because mr X failed to carry out his legal duties. Dont worry though, we have fined the company £25K. Not him though, he will still have his holiday next month.
Does not sit well to me
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Thank you for your detailed reply Retty.
I fully agree that the company secretary is not the responsible person. You have answered the question quite clearly for me when you state that somebody has more control but they passed on the responsibility of health and safety.
Obviously this person is within their rights to do this, however they cannot delegate their accountability. this is made very clear within the HASAWA 1974.
There will always be somebody responsible, the only reason why notices get served incorrectly is down to poor investigations by the fire authority. Of course dont forget to possible surfaced charges from vicarious liability.
I appreciate what you are saying FSO
Your argument is that somebody somewhere is always going to be the person ultimately responsible for the commission of an offence or failing. And you would be right.
Due dilligance is no defence under the RRO however the severity of any action taken depends on the level of responsibilityand actions taken by reposnible persons or the body corporate.
If the MD is a concentious bod and has tried to do everything by the book, but someone somewhere lower in the chain has cocked up the MD may be punished by means of the action taken against the body corporate (ie the company is fined, bad press etc etc)
As I understand it there is then the mechanism wherby the prosecution can say " right the company has been found guilty and penalised but the offences were so serious that someone needs to go to prison for this" (lets say someone was killed).
That is the time where individuals are brought in to establish who ultimately was responsible. YOU cant always blame the person at the top - in a huge organisation there is no way the MD could no about every last little detail that occurs from the shop floor upwards.
The are various degrees of control and responsibility and this can be argued out in court.
If i give you the correct training and PPE to operate a lathe, you sign to say you have had the training and understand it then ignore that training and remove a guard and break your hand- or worse... who is reponsible ? me? you? who?
But even still all notices, all correspondance would still from day one be addressed to the body corporate via the company secretary.
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Yes that has pretty much summed up where Im coming from.
Thank you for your patience chaps
Jay
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Phil,
Now you are getting me worried!
Where there is a corporate body involved, (nearly always) we serve notices on that company at their registered address, but address the covering letter to the company secretary as the legal representative of the company. We also send a marked copy to the 'on the ground' person in charge, e.g. the shop manager.
I fully apreciate that when we take prosecution action then almost anybody can be summoned and we often prosecute both the local manager and the corporate body if they have both shown failings. (We accept that some managers have so little 'control' that they are not really culpable and take this into account).
Please tell me that I don't have to re-write all my guidance, etc.
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Due dilligance is no defence under the RRO however the severity of any action taken depends on the level of responsibilityand actions taken by reposnible persons or the body corporate.
MR
What about Article 33 ......"except for a failure to comply with articles 8(1)(a) (general fire precautions) or 12 (dangerous substances) it is a defence for the responsible person charged to prove that he took all reasonable precuations and excercised all due dilligence to avoid the commision of such an offence"
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Phil,
Now you are getting me worried!
Where there is a corporate body involved, (nearly always) we serve notices on that company at their registered address, but address the covering letter to the company secretary as the legal representative of the company. We also send a marked copy to the 'on the ground' person in charge, e.g. the shop manager.
I fully apreciate that when we take prosecution action then almost anybody can be summoned and we often prosecute both the local manager and the corporate body if they have both shown failings. (We accept that some managers have so little 'control' that they are not really culpable and take this into account).
Please tell me that I don't have to re-write all my guidance, etc.
That's absolutely correct Val. The covering letter addressed to the Company Seceretary and posted or delivered to him at the registered office. But the actual notice itself should be filled out:
Name: The Naughty Gadgers PLC
Address: Naughty Gadger House, High St, Anytown.
Premises: Naughty Gadger Store, 2 Small Street, Smalltown.
and yes a copy to the manager at the premises is good practice.
What some FRS have done is made the actual notice out to the Company Secretary, which implies that he personally has failed to comply with the Order. A shrewd barrister may let this run all the way and then point out in Court that the notice is invalid, and I suspect he may apply for costs.
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Thanks Phil,
You had me worried for a moment!
We have had the validity of notices challenged, sometimes with justification, sometimes, it appears for sheer devilment. We have beaten our inspectors around the head long and hard to get them to realise how careful they have to be.
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Unfortunately, Val some people will do anything to avoid doing the work which is probably why the notice was issued in the first place. I remember one employer in the days of the FPA who when he was told that as he now employed 21 people he needed a fire certificate fired a couple of employees on the spot.
I am afraid that these days with the growing litigation culture everything must be exact and if it is wrong it will be challenged.
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Unfortunately, Val some people will do anything to avoid doing the work which is probably why the notice was issued in the first place. I remember one employer in the days of the FPA who when he was told that as he now employed 21 people he needed a fire certificate fired a couple of employees on the spot.
I am afraid that these days with the growing litigation culture everything must be exact and if it is wrong it will be challenged.
Spot on Mike
We are entering a new era really, Fire Authorities are being told to take more prosecutions forward nowadays by Central Governement. They need therefore to become more professional / on the ball in their approach to the legal aspects of the job. Lancashire FRS are ceretianly leading the way on that.
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Unfortunately, Val some people will do anything to avoid doing the work which is probably why the notice was issued in the first place. I remember one employer in the days of the FPA who when he was told that as he now employed 21 people he needed a fire certificate fired a couple of employees on the spot
Remember this happening to me also so I removed the requirement for an improvement of the fire alarm system and served it under a different Article of the same legislation. He thought that by getting rid of a few people he did not have to do anything. He didn't save an awful lot of money really.
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as for an example......
a stores person delivers boxes of leaflets to a fire station and places them in front of a fire exit that causes a serious problem that night. Who's to blame? the stores person?....who hasn't been trained......maybe the training department.....could be the health and safety department for not risk assessing the task....maybe the employer? who is that? Human resources? Maybe its the person in control of the premises at the time....the watch manager on duty? but he only came on at 6 and doesn't know anything. could be the property department, could be the publications department who told him to deliver in the first place....or is it just the Service as a body corporate...or the Authority? My guess would be to serve a notice on the Authority addressed to the clerk.
not so straightforward!
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as for an example......
a stores person delivers boxes of leaflets to a fire station and places them in front of a fire exit that causes a serious problem that night. Who's to blame? the stores person?....who hasn't been trained......maybe the training department.....could be the health and safety department for not risk assessing the task....maybe the employer? who is that? Human resources? Maybe its the person in control of the premises at the time....the watch manager on duty? but he only came on at 6 and doesn't know anything. could be the property department, could be the publications department who told him to deliver in the first place....or is it just the Service as a body corporate...or the Authority? My guess would be to serve a notice on the Authority addressed to the clerk.
not so straightforward!
Zimmy in this situation why would you want to serve a notice? You just move the boxes and consider if an offence has been committed.
If the boxes had placed relevant persons at risk of death or serious injury (unlikely) you may want to prosecute. In that case you need to investigate to determine who is at fault.
This involves interviewing persons and examining job desscriptions, employment contracts, training records etc. Best practice to start at the top to see if the company/organisation can demonstrate due dilligence, if they can then the person who should be prosecuted is further down the chain.
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Zimmy, if it is kept to the service the stores person gets chewed out under the "Being Bloody Stupid Act 1908 ". However if a fire person is injured and claims via Mssrs Sue, Grabit and Run, everybody gets sued particularly the Fire Authority as they have the insurance and the money. (Sorry, my cynicism is showing)
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Zimmy
I think you must work for our brigade, our storeskeeper frequently blocks exits with his boxes. I'd happily support you issuing a notice on the Cheif or the Chair of the Authority - it would definately get them away from the golf course or doing funny hand shakes down at the lodge.
You start at the top and work down looking for any failing which may highlight the organisation or senior management being at fault. You dont really need to start looking at contracts of employment or anything that indepth unless people start clamming up and denying all responsibility or blaming each other. That sort of in depth investigation would only come if someone had been killed I would suggest.
I would be asking if the organisation told the stores operative to keep exits clear. If they said yes id want to see evidence, a memo, some training, or anything that said that operative knew not to block exits. If they couldnt id go for the organisation if they did and the operative was just naughty then he might get knocked off. It may be a culmination of theboth particularly if the stores supervisor saw his operative blocking exits and did nothing about it.
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The point of the example was to highlight the difficulty in identifying an individual to blame. Whether a notice or prosecution, an investigation would be unlikely to reveal one person at fault and therefore it would probably result in action against the Authority....unless of course the stores man had signed a piece of paper within the last three months saying 'i hereby declare that I have been fully trained, both through induction and periodic refreshers in the correct manner in which to deliver and place various quantities of goods to their designated location with particular regard to avoidance of contavening Article 14 of the RRFSO!...then it would be easy!
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You dont really need to start looking at contracts of employment or anything that indepth unless people start clamming up and denying all responsibility or blaming each other. That sort of in depth investigation would only come if someone had been killed I would suggest.
It is only an offence if persons are placed at risk of death or serious injury. If you don't look in depth to determine the extent of control and who is responsible for what you may have difficulty in Court, in my humble opinion of course.
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Zimmy
I think you must work for our brigade, our storeskeeper frequently blocks exits with his boxes. I'd happily support you issuing a notice on the Cheif or the Chair of the Authority - it would definately get them away from the golf course or doing funny hand shakes down at the lodge.
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You seem to have a problem with this. Did you get black - balled?