Bankrupt business in receivership- who is the RP?

[kurnal]

Thanks Civvy though let us remember that the link is to the Scottish guidance and their Law is different to that in England and Wales.

[CivvyFSO]

Doh!

http://www.hse.gov.uk/enforce/enforcementguide/investigation/identifying-insolvency.htm

That's better.

[Tom Sutton]

Civvy can you use HSE guidance as the RR(FS)O says "the employer, if the workplace is to any extent under his control" there is no mention the employer has to have control in the HASAWA.

If the premises is in administration the Insolvency Practitioner (Accountant) is only an agent of the employer therefore the employer does have control. However if the premises is in receivership the official receiver can sack the employer so is the employer in control in that situation?

From the following link "before the receiver arrives at your company, because once they do, they have complete control over everything."

http://www.becomingbankrupt.co.uk/going-into-receivership.html

[CivvyFSO]

I think you can, it seems to agree with much of what has been said:

Proceeding against the Receiver 62. It will not usually be appropriate to proceed against the receiver personally, though the terms of appointment may be so wide as to make the receiver a 'person in control' of premises for the purposes of s.4, HSWA. No proceedings against a receiver should be commenced without consulting the Legal Adviser's Office.

From that it seems that it depends on the terms of the appointment, so if the receiver takes over the entire running of the business then they may be responsible for ensuring staff training etc takes place, but if they are there simply to manage the financial affairs then the duty would still rest with the employer. If the receiver removes funding for such as H&S training / PPE then they are asserting control and I would say that elements of the person having control from both pieces of legislation would apply accordingly.

The public interest test is mentioned quite a lot, and I would assume that they are hinting that they would not bother wasting time prosecuting an employer who is in receivership due to the likelihood of just adding the debts or a minimal fine being issued, however if the receiver could be held accountable then the public interest test would not present much of a problem.

[Tom Sutton]

Having looked more closely at the HSWA I stand corrected and accepts the two pieces of legislation have many similarities in this respect.

IMO the crux of the matter is identifying who is in control and because the bankruptcy legislation is so complicated the best person to assist you in identifying these persons would be the insolvency practitioner in charge of the premises you are dealing with. With this information using part 3 & 5 of the RR(FS)O you could identify the who the RP and any other persons in control are.