Office based in a wing of a historic house

[nearlythere]

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.

Following this discussion the issue of RPs of common areas is not clear. To what level of responsibility is an employer using a common escape route responsible? He can't be responsible for its protection other than from his premises. He can't be responsible for the safety lighting, fire alarm points or FFFE therein because it is not his. Surely, his only reasonable responsibility is to ensure that nothing he does adversly affects the fire safety of persons in his and other occupancies?
He is responsible for the safety of his employees from fire and if someone else is compromising that he has a responsibility to report the matter to the F&R Service.

[PhilB]

I disagree Nearlythere, he has an absolute duty to ensure the common parts are in compliance eventhough he may not exercise much control over them. The situation was exactly the same with the WP Regs and FPA circular 28 explained it quite well.

It pointed out that it may seem a bit harsh making the employer responsible for matters over which he had little control. It went onto explain that if the employer does everthing in his power to make sure that it is ok he would have e defence of due diligence and enforcing authorities would be expected to direct their enforcement efforts towards another person.

It's worth a read as it would clear up most of the points in this debate. It is unfortunate that Guidance Note No.1 does not explain it so well.

[Midland Retty]

To put this into some kind of context:

An old factory building has been modernised internally and carved up into little units which are rented to several businesses. Means of escape from each unit is via a communal route and numerous final exit doors.

Each unit is occupied by "an employer" for the sake of the argument, and they are therefore RPs.

The landlord locks the final exit doors for security reasons. None of the RPs has access to the key, and the landlord refuses to unlock them. What do the RPs do next?

Some would argue there is nothing they can do because the landlords actions are out of their control. But in the eyes of the law its not that simple.

There are other things the RP's could do (or atleast try).

Should the RPs go round and see the landlord straight away demanding he re-opens the exits?, do the RPs write to the landlord asking him not to lock the exits? do the RPs withold their rent until the situation is resolved, shuld they call in a fire inspector?,  do they decide the means of escape is compromised to such an extent that they need to send their workforce home? Do they instigate watching briefs as atemporary measure? I don't know!

What I'm trying to point out is that the RP has to do everything reasonably practicable to resolve the situation. Them simply shrugging and saying " it's out of our hands" isn't enough there are still things that can be done to try and mitigate the problem.

I once again point out that a "PHC" can be issued with notices (apart from Alteration Notice) and remember article 32(2)(10)

Because of this it is unlikely that "innocent" RPs(as in our scenario above) would get action taken against them because of the actions of others such as the naughty landlord locking fire exits.

[nearlythere]

To put this into some kind of context:

An old factory building has been modernised internally and carved up into little units which are rented to several businesses. Means of escape from each unit is via a communal route and numerous final exit doors.

Each unit is occupied by "an employer" for the sake of the argument, and they are therefore RPs.

The landlord locks the final exit doors for security reasons. None of the RPs has access to the key, and the landlord refuses to unlock them. What do the RPs do next?

Some would argue there is nothing they can do because the landlords actions are out of their control. But in the eyes of the law its not that simple.

There are other things the RP's could do (or atleast try).

Should the RPs go round and see the landlord straight away demanding he re-opens the exits?, do the RPs write to the landlord asking him not to lock the exits? do the RPs withold their rent until the situation is resolved, shuld they call in a fire inspector?,  do they decide the means of escape is compromised to such an extent that they need to send their workforce home? Do they instigate watching briefs as atemporary measure? I don't know!

What I'm trying to point out is that the RP has to do everything reasonably practicable to resolve the situation. Them simply shrugging and saying " it's out of our hands" isn't enough there are still things that can be done to try and mitigate the problem.

I once again point out that a "PHC" can be issued with notices (apart from Alteration Notice) and remember article 32(2)(10)

Because of this it is unlikely that "innocent" RPs(as in our scenario above) would get action taken against them because of the actions of others such as the naughty landlord locking fire exits.

The only course of action which will probably definitely protect his workforce is to send them home. He can report it to the EA but he has no control over what it will do and when. Speaking or writing to the landlord does not necesarily get the doors open. Breaking the door open would be a criminal offence.
Is it reasonable to expect him to send the workforce home? No, but he is responsible for their safety and at the end of the day, probably would have no option.
Realistically though he will report the matter to the EA and carry on working regardless.

[Tom Sutton]

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 RP`s 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 RP`s who are employers that have an absolute duty RP`s 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.

Phil I will deal with each paragraph in turn.

Para one. I agree with all of it except the last statement, what article defines the owner as a RP assuming he is not an employer as well?

Para two.  I am not saying that there can only ever be one RP for one workplace I agree with you there can be many RP`s in a multi-Occupied premises. Art 3(a) the employer is the RP if he has to some extent control and as he is able to comply with most of the relevant articles (8 – 22 & regulations under 24) then he has control and is therefore the RP for his occupancy. However he has no control of other occupancies so he cannot be the RP and the employer of the each occupancy is the RP of that occupancy.

Para three. I disagree, art 5(3) places a duty on every person, other than the responsible person to comply with all articles as far as the requirements relate to matters within their control and in my opinion the owner is one of those other persons which I abbreviate to PHC.

Phil I don’t think we will ever agree on this sticking point “in a workplace can an owner be a responsible person” because I believe you see the term “responsible person” as a descriptive term I see it as a definitive term so can we agree to disagree.

[PhilB]

HI TW, I will also deal with each paragraph in turn

Para one.

I can see where you’re coming from and I agree but the situation is never in reality going to occur.

The owner of a multi-occ building will be in control in connection with the carrying on of a business and as such he is covered by article 3(b)(i). So therefore he is the owner and the occupier. He also most likely to employ people and so is also an employer.

So as I stated earlier in multi-occ buildings premises and workplaces overlap and there may be several RP`s for the common parts and one of them could be the owner……...who is also the occupier….and probably an employer as well.



Para two.

I agree that in a multi-occupied building the RP of one workplace will probably have little or no control of the other occupancies. However if all the occupancies use the common parts for access or egress those common parts become part of each RPs workplace and RPs who are employers must ensure that the common areas comply even though they do not exercise full control. They are of course exercising some control by using them as a workplace.


Para three.

Yes 5(3) places a duty on every person other than the RP but only so far as the requirements relate to matters within their control.

However 5(1) places a far greater duty on RPs who are employers. They have an absolute duty to ensure compliance if the workplace is to any extent under their control……..even if some other gadgy….(be they the owner/occupier/ or other RP) has more control.

TW I see the term “Responsible person” as a legal term defined by article 3.

In theory in a multi-occupied workplace if an owner did not occupy the building……and was not carrying on a trade, business or other undertaking…….he could be considered to the RP. However in the real world he is likely to be owner, occupier and carrying on a business and so it doesn’t really matter.

What does matter is whether or not he is an employer as well because if he is, he has an absolute duty to comply.

Where the term 'owner' is more likely to be of use is in empty or derelict buildings. Previously no enforcement action could be taken as previous fire safety law dealt with the use of premises or the safety of employees. Now thankfully it deals with the safety of relevant persons so owners of empty buildings must consider the safety of persons in the vicinity.

Right shall we discuss the term ‘vicinity’ now???   

[Tom Sutton]

Right shall we discuss the term ‘vicinity’ now???   

No thank you Phil, I promise you I am lying prostrate on the floor hitting the floor with the palms of my hands and screaming Uncle! And me brain hurts to.

One last fling, when I reading the above posting and you mentioned art 3(b) which to my understanding only applies if the premises is not a workplace and if that is the case what are these premises. I have considered this before and could not think which category of premises would apply until you mentioned empty (unoccupied) or derelict buildings. They are not domestic premises so the order applies; they are not a workplace so art 3(b) applies, which means the Person Having Control or the Owner is the Responsible Person.

In the case of Kurnal’s Mill the old geezer is the only person who has control of the unoccupied units and as the owner, carrying out a trade or business is he not the Responsible Person according to art 3(b)(ii).

Does this stack up?

[Midland Retty]

It does TW you have got it in one!

[kurnal]

TW I disagree.
The empty units are unoccupied workplaces. There is no employer there. The only person with control is the old geezer who owns the place.

Guidance Note 1 para 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 )."

The old geezer has control over the premises, he is not an employer but operates it as a business.

"37. If so, article 3(b)(i) provides that the person with control is the responsible person."

The old geezer has control and is therefore the  responsible person for the unoccupied units.

Ive not had so much fun in a long time.

[PhilB]

Yes I must agree with Kurnal. 

[Tom Sutton]

The old geezer has control and is therefore the responsible person for the unoccupied units.

Prof I agree fully with your conclusion although we may have arrived at by different routes and please let’s agree to disagree on the routes.

Clearly more than one RP. 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.

Now you agree the old geezer is the RP therefore he is subject to art 29, 30, 31, 32 and you can serve an alteration notice to prevent that nasty fireworks manufacturer taking residence?  This has worried me from the beginning.

[Midland Retty]

Blast I misread your earlier post TW and endorsed it by mistake (well thats my excuse anyway!!)

In the scenario you give you are correct in saying that the owner is the RP and in that particular instance would be subject to articles 29 to 31

He would be subject to article 32 anyway, even if he was just a PHC.

In Kurnals scenario however the RP was not the old chap who owned the school and we wouldnt have been able to subject him to Art 29. That is when I suggested that there would be 'ways around' this by use of a prohibition / restriction notice.

The wording in 3(b)(i)and (ii) can be interpreted that the "carrying on of a trade, busines or other undertaking " needs to apply before an owner or PHC will be identified as an RP.

Just what does that actually mean?

Is an unoccupied premises an "Undertaking" necessarily? If it's empty is anyone at risk?...

Im off  to lay in a darkened room.

[Tom Sutton]

The wording in 3(b)(i)and (ii) can be interpreted that the "carrying on of a trade, business or other undertaking " needs to apply before an owner or PHC will be identified as an RP.

Just what does that actually mean?

Are unoccupied premises an "Undertaking" necessarily? If it's empty is anyone at risk?

I would suggest if an owner or PHC has an unoccupied premises the purpose would be to rent or sell it, would that not be a business or undertaking?

[Clevelandfire 3]

I dont think the RRO applies to an empty building where no one is employed or no undertaking takes place Retty

[PhilB]

I dont think the RRO applies to an empty building where no one is employed or no undertaking takes place Retty

Yes it does Cleveland, where does it say that the Order does not apply?? Unless the building is on a desert island there are likely to relevant persons in the vicinity and the RP must ensure that the Order is complied with.