Office based in a wing of a historic house

[PhilB]

Is it not also the duty of HM Govt to produce guidance that is correct and fit for purpose- ie it guides rather than misinforms?
What do you think of the explanations of articles 3, 5 and 29 as presented in Guidance Note No 1?

To my eyes the "guidance" appears to contradict the articles?

Hi Kurnal

Yes I have been away from the forum for a while....busy beavering away in my own little world and then I bought a new computer and managed to lose my firenet password! It's an age thing, I trust Toddddy has been keeping everyone amused.


I agree it's not the best guidance but it does corrcetly explain those articles in my opinion. It just does so in a very long winded fashion. Where do you think it contradicts the Order?

[Tom Sutton]

TW there can be many RPs who are employers in a workplace.
Take an old mill and subdivide it into business units, with common access and toilets etc.
Definition of a workplace includes access and egress routes therefore the common areas are parts of each individual employers' workplace.

Prof I can see what you are saying because of the common areas the whole premises is one workplace but the way I interpreted it was the workplace which each employer has control of is a separate workplace. I can see by your interpretation each employer (RP) is responsible for the area of the workplace he/she has control of and maybe this is why article 3 is worded as it is.

The wording of article 5 makes the duty to comply absolute if the RP is an employer.

Phil I now understand the RP does have absolute duty to comply as you has explained. As well as the RP the PHC only has to comply if he/she has some control of the premises and with matters that is within their control.

[Tom Sutton]

But the Old Geezer who now owns the old mill and lets out the units (Private landlord not an employer) is only a "person having control". So the fire authority cannot serve an alterations notice on him to ensure he consults before leasing a unit to a fireworks manufacturer.  And none of the RP`s can control who he leases to.

But why is the "person having control" not subject to article 29 like article 30, 31, 32. Looking at your example it would make sense if the PHC was. The nearest to solving that problem would be article 22(2) but as no RP has overall responsibility I reckon that’s a none starter as well.

[kurnal]

TW I am in the dark as much as you on this.
I thought I had a reasonable understanding of the situation but I started to doubt this having read Colins postings 13, 16 and 20 in this thread.

Colin appears to take the firm view that in the scenarios quoted the Owner is NOT an RP. He is just a person having control. I would very much like to understand the issues behind this.

Till then I thought that in this scenario all employers and the owner were classed as Responsible Persons. A view reinforced by my reading and re-reading of the Guidance Note No 1. 

Now if we take Colins position to be correct in the scenario quoted, as the building contains a workplace and we have an employer in the building, nobody else but the employer will be a responsible person. The owner of the building will be a person having control.

But even allowing for the broadest description of a workplace as set out in the European directive, it seems to me that some parts of the building are not a workplace and  that some parts of the common areas will be outside the control of some of the employers. Article 3 says:

Meaning of "responsible person"
 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.

This is then clarified in the guidance note as follows:

35. Article 3(a) provides that in a workplace the employer is the responsible person if
the workplace is under the employer’s control. This reflects the Framework Directive
(89/391/EEC), which imposes unconditional obligations on employers by having the
ultimate responsibility for the safety of their employees in case of fire, even where
others have obligations in respect of the premises.
36. If the premises are not a workplace, or are a workplace but are not under the
employer’s control, the responsible person is determined by whether the person who
has control over the premises does so in connection with the carrying on of a trade,
business or undertaking (whether or not for profit ).
37. If so, article 3(b)(i) provides that the person with control is the responsible person.

That is my understanding. I think that the guidance note is correct and the owner is a responsible person.

Article 29 says:
29. —(1) The enforcing authority may serve on the responsible person a notice (in this Order referred to as "an alterations notice") if the authority is of the opinion that the premises—

(a) constitute a serious risk to relevant persons (whether due to the features of the premises, their use, any hazard present, or any other circumstances); or

(b) may constitute such a risk if a change is made to them or the use to which they are put.


Guidance note No 1 says:
Article 29 – Alterations notices
130. The purpose of an alterations notice is twofold. First, it is intended to assist enforcing
authorities in maintaining a risk-based inspection programme by highlighting potentially
high life-risk premises where risk levels may change and affect the outcomes of the fire
risk assessment. Secondly, it notifies the responsible person (and other persons who
have duties in respect of premises) that the enforcing authority considers the premises
to be of high or potentially high risk. This will affect those persons’ consideration of risk
in the premises.

Reading article 29 at its face value- the alterations notice is served on the responsible person. This seems to imply it cannot be served on a person having control, though the guidance note 1 para 130 seems to blur this a little by referring to other persons who have duties in respect of premises.

Sorry for banging on about this - I just want to understand it.

[colin todd]

Kurnal, Probably best not to worry your pretty head about it. The people responsible for the legislation in England never really understood what they were doing so why should you? Either live with the confusion or emigrate to Scotland, where the Scottish Govenrment had the benefit of a Scottish education and some wise individuals, even though one of them was not great at commas.

[kurnal]

Yes I must admit I was swotting up a bit on the Scottish  Law in preparation for a job in Glasgow and was struck by how they can express so much so simply and yet so thoroughly.

 

[PhilB]

I agree that is a tad confusing but it would only cause a problem with the alterations notice scenario.

In the examples given in this debate you could prosecute or serve enforcement notices on the owner as a person who has to some extent control but you could not serve an alterations notice on him. Was this a mistake in the Order?? Should the enforcing authority be able to serve an alterations notice on any person who has to some extent control?? Possibly but is rarely likely to cause a problem.

Think of a shopping mall, in that situation there would be numerous workplaces and some of the workplaces will share certain routes and rely on certain preventive and protective measures along those routes.

Now the maintenance of the common parts will probabaly be the responsibility of the owner of the building and he would be the responsible person for the common parts, furthermore the owner would probabaly not be an individual but a body corporate so the body corporate would be the responsible person for the common parts.

But eventhough there is a RP responsible for the common parts, the RP for each individual shop is also the RP for the common parts that his employees use for access ane egress and has an absolute duty to comply with the Order even though other persons exercise a greater degree of control over those areas.

In that situation the guidance note correctly points out that the enforcing authority would need to consider who is the most appropriate person to take enforcement action against.

I was involved in serving an alterations notice in this situation and it was served on the management company.

And yes those chaps on the other side of the wall do usually write better legislation but that's because they often let us take the plunge first and then tidy it up a bit....but they do have some rather strange eating habits, think that swedes are turnips and have a dubious dress sense.

[Tom Sutton]

Now the maintenance of the common parts will probably be the responsibility of the owner of the building and he would be the responsible person for the common parts, furthermore the owner would probably not be an individual but a body corporate so the body corporate would be the responsible person for the common parts.

Phil I believe you should use the definition “Responsible Person” in precise terms. In a workplace the Responsible Person is a designated position and it can only be the employer. The owner can be a person having control or you could call him a person responsible but not a Responsible Person. This is not nit picking because I believe this is where much of the confusion lies.

[kurnal]

TW do you not think  that guidance note no 1 para 35,36,37 actually identifies the owner as a responsible person?

Para 35 says the  employer is the responsible person if the workplace is under the employer’s control. In our old mill some parts of the building are not under the employers control. They are only under the landlords control. This may include business units not yet let to clients. The landlord does not employ anyone- he owns and manages it himself.

Para 36 and 37 say where the employer does not have control the responsible person will be determined by the person who has control. If the person who has control does so by way of trade or business (For profit or not) then tha tperson is the responsible person.

So my owner is a responsible person.  (I certainly hope I am right- I have written and sold two policy and management documents to owners of historic mills constructed around that premise)

[PhilB]

Now the maintenance of the common parts will probably be the responsibility of the owner of the building and he would be the responsible person for the common parts, furthermore the owner would probably not be an individual but a body corporate so the body corporate would be the responsible person for the common parts.

Phil I believe you should use the definition “Responsible Person” in precise terms. In a workplace the Responsible Person is a designated position and it can only be the employer. The owner can be a person having control or you could call him a person responsible but not a Responsible Person. This is not nit picking because I believe this is where much of the confusion lies.

I am using the definition responsible person in precise terms TW. You are correct that in a workplace the employer will the responsible person. However in a multi-occupied building containing many different workplaces there may be many employers and many responsible persons.

There may also be a an owner who is responsible for the common parts and he will often be a responsible person in his own right rather than merely a person who has to some extent control. If the managing agent is an employer he will definately be a responsible person. So you see in a multi-occupied building there may be many responsible persons, however for each workplace there will be just one.

In the case of the office based in a house or a school with a person who has some control the situation is different because these are domestic premises and the order does not apply to dometic premises. Furthermore the occupier of the domestic premises is not an employer.

So you see that an owner can be a responsible person as is the case in Kurnals mill.

[Tom Sutton]

There may be a an owner who is responsible for the common parts and he will often be a responsible person in his own right rather than merely a person who has to some extent control.

So you see that an owner can be a responsible person as is the case in Kurnal’s mill.

Phil I agree fully with all you said with some reservations regarding the above paragraphs. Assuming we are talking about a workplace then Art 3(a) applies and if you can make case that the owner is also an employer or if he employs a managing agent, then this makes him an employer then I would agree, if you cannot then he cannot be a RP. If you can make a case the common areas are not a workplace the Art 3(b) applies and the owner can be the responsible person in his own right.

In the case of Kurnal’s mill the commons areas are a workplace but you may be able to argue the owner runs the mill as a business undertaking and doesn’t employ anybody. Then he is self employed and employs himself, art 3(a) applies, nail him maybe?

[PhilB]

But as Kurnal points out an owner can be a responsible person without being an employer.

The difference is that a RP who is an employer has an absolute duty whereas an RP who is not does not have an absolute duty.

Now to be an employer there must be a contract of employment. A self-employed person could not be classed as an employer simply because he employs himself.

However a self-employed person may own and manage the common parts in a multi-occ building containing many workplaces. In that case he as the owner could be a responsible person but would not have an absolute duty imposed on him.

The common parts are also parts of all the other workplaces and the RPs of those workplaces (employers) have an absolute duty to ensure that all is ok in the common parts eventhough they may not have full control of those parts.

So in that case the enforcing authority will need to decide who to target their enforcement action to.

I don't see how you could ever make a case for the common areas not being workplaces.......they are a workplace if they form the access or egress routes to any other workplace.


Having said all of the above, a far more likely scenario would be that the common parts are also a workplace in their own right and there will be a need for the RP of the common parts to co-operate and co-ordinate with all the other RPs...like in a shopping mall for example.

I need to lie down now.

[Midland Retty]

Happy New Year Phil!

You could argue that maintenance has to be carried out in the common areas. i.e. light bulbs have to be changed, redecoration, etc and thus if the landlord employed contractors to say change lightbulbs, do repairs, sevice the communal fire alarm / emergency lighting he infact becomes 'defacto' an employer and therefore an RP in his own right.

The RP for the common areas may or may not be the landlord (depending on the circumstances) I can sort of go with PHilB's argument about the communal areas being an extention of the workplace too/

The fact is that apart form an alterations notice all other notices can be served on a PHC let alone a RP which largely makes this argument academic.

Throw into the mix the provisions of article 32(2)(10) (The commisioning of an offence is done by a third party - which could be a PHC) I don't see that an RP who is an employer being hammered in the courts for the shortfalls of a Landlord who is a RP but doesn't employ anyone OR is simply a PHC

[Tom Sutton]

But as Kurnal points out an owner can be a responsible person without being an employer.

The difference is that a RP who is an employer has an absolute duty whereas an RP who is not does not have an absolute duty.

I don't see how you could ever make a case for the common areas not being workplaces.......they are a workplace if they form the access or egress routes to any other workplace.

Sorry Phil I still do not agree with above first two paragraphs, if the premises is a workplace Art 3(a) applies and the person designated the “Responsibly Person” is the employer no other person is named. I also reiterate the “Responsible Person” is a designated person and not a description of a person.

If the premises is a non domestic premises and not a workplace then Art 3(b) applies. In this situation the owner could be designate the “Responsible Person” but I cannot think of a premises that would fit into this category.

The part of the second paragraph, indicated in bold, you are describing a person having control (PHC) but not a RP.

In the third paragraph I have never made that case and it is quite clear from the definition of a workplace that the common areas are part of the workplace, if employees have access.

I agree with most of what MR said and this argument may be academic but I consider it important because the person who is designated RP has an absolute duty to comply with articles 8 to 22 or by regulations made under article 24. A person having control (PHC) has only a duty to comply with the articles that he has control of.

[PhilB]

Sorry Phil I still do not agree with above first two paragraphs, if the premises is a workplace Art 3(a) applies and the person designated the “Responsibly Person” is the employer no other person is named. I also reiterate the “Responsible Person” is a designated person and not a description of a person.

If the premises is a non domestic premises and not a workplace then Art 3(b) applies. In this situation the owner could be designate the “Responsible Person” but I cannot think of a premises that would fit into this category.

The part of the second paragraph, indicated in bold, you are describing a person having control (PHC) but not a RP.

In the third paragraph I have never made that case and it is quite clear from the definition of a workplace that the common areas are part of the workplace, if employees have access.

TW yes if the premises is a workplace there will be a responsible person for that premises and he must be the employer. However in multi-occ buildings premises and workplaces overlap and there may be several RPs for the common parts and one of them could be the owner.

You appear to be are saying that there can only ever be one RP for one workplace. Because definition of workplace includes the routes to and from it...there will often be places where workplaces overlap and so do responsibilities, the best example I can think of is a shopping mall.

The part of the second paragraph, indicated in bold, I am describing a RP, not a PHC. As you correctly point out It is only RPs who are employers that have an absolute duty RPs who are not employers only have to comply so far as the requirements relate to matters within his control. Article 5 is quite clear on this.