I think you are right Tom and Hi Tower. It is an interesting point and illustrates some of the confusion that can arise. Heres a few questions that come to mind and I hope will prompt discussion.
The first point is whether the premises are a workplace. Are the common parts of flats a workplace? Is the definition of workplace in the Order sufficient to make a decision on this or do we need more ? What is the definition of a workplace under H&S legislation and is this relevant?
It may well be a workplace for a cleaner, for the staff of the Managing Agent, what about others? How should we treat say the employees of a security firm who carry out regular patrols or a plumbing contractor whose staff regularly visit the site to clear the blocked drains?
This leads us to the issue of the extent of control. See article 5(4) of the Order
I suggest that the Managing Agent most likely does have control of the premises, is likely to be an employer, the staff of the Managing Agent will be employed to work within the common areas and if so is likely to be the responsible person. What about the security firm or the cleaning contractor who are both employers? Responsible persons or persons having control? I suggest it all depends on the contract between them. Article 5(4).
In the situation described by HiTower the Directorate, as owners, if they are not an employer, will be a person having control.
However if the Directorate did not employ the managing agent or if their contract with the managing Agent were very limited, say to the collection of rent but not including maintenance or repairs, or if the premises were not a workplace then the owner would be the responsible person. The prescribed information (Article 9(7)) may still have to be recorded though, if for example it were a licensed HMO.
These points are made to prompt discussion in the hope to promote better understanding of commonly misunderstood areas of the Order. Please do not take any of my comments or questions as definitive. And please feel free to disagree.
