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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: Mushy on March 02, 2010, 01:52:13 PM
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Hi
hypothetical scenario...a department store has 4 floors, each floor has a different manager...bed/soft furnishings etc
lets say the store is prosecuted cos they were caught with fire exits blocked in the bed department....could the bed manager be the 'responsible person' as well as the employer/store manager
just hypothetical like
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Hypothetically yes. For two reasons:
a) Where an offence is caused by another person that that person can be found guilty of the offence. (Regardless of whether action is taken against the employer)
b) The manager is really a person having control, so they could, hypothetically, be seen as the RP for this purpose.
However, the first thing to question would be the training offered by the employer. They would have to prove due diligence to get out of it.
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If this hypothetical store was in the Frozen North (otherwise known as Scotland) the concept of 'person in control to any extent' would apply to both. This may be much the same in the balmy south with different wording.
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Thanks for that
Article 5(3) also seems to cover it but states 'has to any extent, control of the premises' and not 'control of departments within the premises'
oh I'm basking in the sun down here ;)
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I'd say yes ... Article 5(3) does apply.
The department manager is a repsonsible person. The workplace is, to some extent under his control, if the workplace is considered to be the floor / department. It would be up to him/her to prove otherwise, although it could also be required of the prosecutors to prove beyond reasonable doubt.
Just my thoughts.
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"premises" includes any place and, in particular, includes—
(a) any workplace;
"workplace" means any premises or parts of premises, not being domestic premises, used for the purposes of an employer's undertaking and which are made available to an employee of the employer as a place of work and includes—
(a) any place within the premises to which such employee has access while at work; and
(b) any room, lobby, corridor, staircase, road, or other place—
(i) used as a means of access to or egress from that place of work; or
(ii) where facilities are provided for use in connection with that place of work,
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thanks baldyman...nearlythere cheers, good find!....
note to self...read the soddin RRO!
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It's always a good starting point. :P
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thanks baldyman...nearlythere cheers, good find!....
note to self...read the soddin RRO!
Note to Mushy...read the soddin RRO!
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'thanks baldyman...nearlythere cheers, good find!....
note to self...read the soddin RRO!'
'Note to Mushy...read the soddin RRO!'
Note to nearlythere
remind Mushy to read the sodding RRO ;D
davo
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The department manager is a responsible person.
Sorry Baldy i disagree a department store is a workplace and the employer in a workplace is the RP. (3(a))
5.3 is about the duties imposed on the RP and other who have control. I do agree he could be made responsible for blocked exit but it does not make him the R P.
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they would not be the RP, but would be a person with duties and thus liable to the extent of any deficiency in a matter within their control.
So if the buildings fire alarm was not maintained it may not be the individual managers fault, but if they wilfully allowed staff to stack mattresses against the fire exit, because he has control over them and the rea in question he would be failing is his duty and liable.
I think that's how it may be.
Would both the RP and the manager get prosecuted or just the manager?
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In my very humble opinion, I'd suggest that the departmental manager would be held vicariously liable to the extent that any failings were under his/her control and would join the RP in any enforcement proceedings (althought the share of the blame may reflect the degree of control over exercised by the individuals concerned the specific failings indentified ).
The departmental manager does not become the Responsible Person and therefore the overall duties under the RRO would sit with the employer.
Article 5 (3) states "Any duty imposed ..... on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person .... who has, to any extent, control of those premises so far as the requirements relate to matters within his control."
As a result I'd suggest that not only the departmental manager has duties imposed on them, but anyone with a degree of control. For example if an individual make a unilateral decision to block a fire exit then they could be held viacriously liable along with the departmental manager and the RP. However, if they are instructed to block a fire exit by their manager, then the manager carries the can.
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Absoultely agree TW ... the employer is the RP, but if the manager at the local level has the authority to hire and fire, he then too becomes an employer, which is where it all gets a bit muddy!
The department manager would have delegated responsibility by the employer, but does that not exclude him/her from prosecution, nor does it negate the actual employer from their responsibilities or prosecution.
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And if my Auntie had nuts she would be my uncle.
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As already said above the RP in a workplace is "the employer" thus the departmental manger cannot be the RP.
I think Colin's definition of vicarious liability is a bit confused. Vicarious liability is normally (though not exclusively) a civil law principle, relying on the "master /servant" relationship and makes the employer responsible in civil law for the acts of his employee even though he may not be to blame for them. Individuals who break the law aren't vicariously liable - they are directly liable. In the Health and Safety at Work Act there are specific provisions (ss 7 and 37) allowing proceedings to be taken against individual employees and managers respectively.
It seems to me that Article 23 of the FSO (General Duties of Employees at work) was put in for the same purpose, i.e. to allow proceedings against an individual employee rather than the RP (the employer in this case). The wording of the Article almost exactly mirrors that of S7 of HASAWA:
1) Every employee must, while at work—
(a) take reasonable care for the safety of himself and of other relevant persons who may be affected by his acts or omissions at work;
(b) as regards any duty or requirement imposed on his employer by or under any provision of this Order, co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with
Article 32 (Offences) makes it clear that it is an offence to
fail to comply with article 23 (general duties of employees at work) where that failure places one or more relevant persons at risk of death or serious injury in case of fire;
This I suggest that in the hypothetical case the departmental manager could, if it were felt appropriate to do so, be prosecuted under Article 23. However he does not at any time become the RP. Neither in law does he become the employer just because he can hire and fire. In the case of a company, employer = the body corporate.
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However, if they are instructed to block a fire exit by their manager, then the manager carries the can.
Despite being instructed to block the exit would they not therefore be in breech of General duties of employees at work?
It shall be the duty of every employee while at work--
(a) to take reasonable care for the health and safety of himself and of
other persons who may be affected by his acts or omissions at work; and
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Possibly. It would depend on the exact circumstances. For comparison, prosecutions under S7 HASAWA (general duties of employees) are much less frequent than under section 2 (general duties of employers) but they do happen when HSE feel they have a sufficient case that the employee was aware of the implications and did actually put someone else at risk. Same would happen here I think. Is anyone aware of any prosecutions under Article 23?
Nearlythere - I think they'd use Article 23 of FSO though, not S7 HASAWA.
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Just to add another dimension, you need to remember that an employer cannot claim due diligence in respect of anything done (or not done) by an employee or a nominated/appointed competent person (Article 32(11)).
As well as that there is case law to say that employees can be the "other person" whose act or default causes an offence (e.g. Article 32(10)) (case is Tesco v Natrass - for anyobne really bored the text is at http://www.bailii.org/uk/cases/UKHL/1971/1.html ).
So I'd say our hypothetical floor manager can be a 5(3) person - especially if safety is in his or her job desription, which would probably make them the nominated competent person. They could be liable under Article 23 and could cop for the lot under 32(10).
Luckily for most managers, most enforcers prefer to take the company to task for not managing the manager properly and let the company deal with the manager in their own sweet disciplinary way.