feeling hypothetical collars

[Meerkat]

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.

[nearlythere]

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

[Meerkat]

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.

[SmokeyDokey]

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.