feeling hypothetical collars

[Mushy]

Hi

hypothetical scenario...a department store has 4 floors, each floor has a different manager...bed/soft furnishings etc

lets say the store is prosecuted cos they were caught with fire exits blocked in the bed department....could the bed manager be the 'responsible person' as well as the employer/store manager

just hypothetical like

[CivvyFSO]

Hypothetically yes. For two reasons:

a) Where an offence is caused by another person that that person can be found guilty of the offence. (Regardless of whether action is taken against the employer)
b) The manager is really a person having control, so they could, hypothetically, be seen as the RP for this purpose.

However, the first thing to question would be the training offered by the employer. They would have to prove due diligence to get out of it.

[afterburner]

If this hypothetical store was in the Frozen North (otherwise known as Scotland) the concept of 'person in control to any extent' would apply to both. This may be much the same in the balmy south with different wording.

[Mushy]

Thanks for that


Article 5(3) also seems to cover it but states 'has to any extent, control of the premises' and not 'control of departments within the premises'

oh I'm basking in the sun down here 

[Nearlybaldandgrey]

I'd say yes ... Article 5(3) does apply.

The department manager is a repsonsible person. The workplace is, to some extent under his control, if the workplace is considered to be the floor / department. It would be up to him/her to prove otherwise, although it could also be required of the prosecutors to prove beyond reasonable doubt.

Just my thoughts.

[nearlythere]

"premises" includes any place and, in particular, includes—
(a) any workplace;

"workplace" means any premises or parts of premises, not being domestic premises, used for the purposes of an employer's undertaking and which are made available to an employee of the employer as a place of work and includes—
(a) any place within the premises to which such employee has access while at work; and
(b) any room, lobby, corridor, staircase, road, or other place—
(i) used as a means of access to or egress from that place of work; or
(ii) where facilities are provided for use in connection with that place of work,

[Mushy]

thanks baldyman...nearlythere cheers, good find!....

note to self...read the soddin RRO!

[CivvyFSO]

It's always a good starting point. 

[nearlythere]

thanks baldyman...nearlythere cheers, good find!....

note to self...read the soddin RRO!

Note to Mushy...read the soddin RRO!

[Davo]

'thanks baldyman...nearlythere cheers, good find!....

note to self...read the soddin RRO!'

'Note to Mushy...read the soddin RRO!'


Note to nearlythere
remind Mushy to read the sodding RRO


davo

[Tom Sutton]

The department manager is a responsible person.

Sorry Baldy i disagree a department store is a workplace and the employer in a workplace is the RP. (3(a))

5.3 is about the duties imposed on the RP and other who have control. I do agree he could be made responsible for blocked exit but it does not make him the R P.

[AnthonyB]

they would not be the RP, but would be a person with duties and thus liable to the extent of any deficiency in a matter within their control.

So if the buildings fire alarm was not maintained it may not be the individual managers fault, but if they wilfully allowed staff to stack mattresses against the fire exit, because he has control over them and the rea in question he would be failing is his duty and liable.

I think that's how it may be.

Would both the RP and the manager get prosecuted or just the manager?

[Colin Newman]

In my very humble opinion, I'd suggest that the departmental manager would be held vicariously liable to the extent that any failings were under his/her control and would join the RP in any enforcement proceedings (althought the share of the blame may reflect the degree of control over exercised by the individuals concerned the specific failings indentified ).

The departmental manager does not become the Responsible Person and therefore the overall duties under the RRO would sit with the employer.

Article 5 (3) states  "Any duty imposed ..... on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person .... who has, to any extent, control of those premises so far as the requirements relate to matters within his control."

As a result I'd suggest that not only the departmental manager has duties imposed on them, but anyone with a degree of control.  For example if an individual make a unilateral decision to block a fire exit then they could be held viacriously liable along with the departmental manager and the RP.  However, if they are instructed to block a fire exit by their manager, then the manager carries the can.

[Nearlybaldandgrey]

Absoultely agree TW ... the employer is the RP, but if the manager at the local level has the authority to hire and fire, he then too becomes an employer, which is where it all gets a bit muddy!

The department manager would have delegated responsibility by the employer, but does that not exclude him/her from prosecution, nor does it negate the actual employer from their responsibilities or prosecution.

[Clevelandfire 3]

And if my Auntie had nuts she would be my uncle.