UK: Safety In Commercial Property: An Expensive Business

Last Updated: 13 December 2012
Article by Rhian Gilligan and Kathryn Turner

Most Read Contributor in UK, October 2017

Whether you are an owner, manager, occupier or service provider there are lessons to be learnt from the increasingly stern approach being taken by the Courts to protecting the safety of those in non-domestic premises. In this article, we will consider two of the key challenges: the management of asbestos and fire safety.

There is no doubt that for some time there has been increased public thirst for harsher penalties to be imposed for breaches of health and safety law. Whilst larger fines had typically been reserved for public disasters and multiple fatalities, more recent cases have re-drawn the boundaries.

Asbestos management

Any business involved with the management, ownership, occupation or work within buildings constructed before 2000 must be alive to the Control of Asbestos Regulations 2012 ("CAR"). The key provision is regulation 4: the duty to manage asbestos.

Who holds the duty?

"Every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises". The potential scope for embracing owners, occupiers, managers and service providers is clear. The HSE has shown a willingness to consider and enforce across the spectrum of involvement in commercial premises.

What does the duty entail?

Those required to discharge the duty must:

  • Carry out a suitable and sufficient assessment to identify whether asbestos is liable to be present
  • Presume materials contain asbestos unless there is strong evidence to the contrary
  • Make and maintain records of the location and condition of any asbestos
  • Risk assess the likelihood of exposure and implement appropriate control measures
  • Prepare an asbestos management plan, which must be implemented and periodically reviewed
  • Provide information on asbestos to anyone liable to work in affected areas

What other duties apply?

Businesses must also be aware that the management of asbestos falls within their "general duties" under health and safety law, namely those set out in Sections 2 and 3 of the Health and Safety at Work etc Act 1974. These require employers to take reasonably practicable steps to ensure the safety of both employees and non-employees who might reasonably be affected by their operations. These provisions are often used to prosecute businesses, for example in relation to refurbishment works leading to asbestos exposure incidents.

What happens when things go wrong...?

In September 2011, Marks & Spencer was fined £1 million and ordered to pay prosecution costs of £600,000 following its conviction for asbestos related offences. The fine followed a three month trial that examined the manner in which the retailer had managed the risk of asbestos during refurbishment works at three of its stores. The fine exceeded the levels normally seen in fatal accident cases. Whilst there was no death or serious injury (so far), the Court was clearly concerned as to the significant risks posed by asbestos exposure.

Fire safety

The introduction of the Regulatory Reform (Fire Safety) Order 2005 (the "RRO") saw a sea change in the way in which fire safety was regulated and radically altered the role of the fire service. The RRO contains a raft of duties, which must be carefully considered, understood and implemented by those in the commercial property sector.

Who holds the duties?

Most of the duties are imposed upon the "Responsible Person". In a workplace, this will be the employer if the workplace is to any extent under his control. In respect of other premises, the person in control of the property will fall within the definition or, failing that, the owner of the building will be caught.

What are the duties?

The Responsible Person must:

  • Take general fire precautions
  • Make a suitable and sufficient risk assessment to identify the precautions needed
  • Eliminate or reduce the risk presented by dangerous substances
  • Equip the premises with suitable fire fighting equipment, detectors and alarms
  • Ensure emergency exits are kept clear
  • Maintain in an efficient order and in good repair the premises and associated fire precautionary facilities
  • Appoint competent persons to assist in undertaking the preventative and protective measures
  • Provide employees with information on risks and measures taken
  • Ensure the provision of adequate safety training

Any failure to discharge these obligations is a criminal offence where the failure places one or more relevant persons at risk of death or serious injury in case of fire.

What happens when things go wrong...?

Failure to appropriately discharge obligations under the RRO has proved to be an expensive mistake:

  • In 2009, New Look was fined £400,000 following a fire at its Oxford Street branch
  • Also in 2009, Shell was fined £300,000 following two small fires in three weeks at one property
  • In 2011, a fire risk assessor was jailed for eight months having pleaded guilty to failing to provide a suitable and sufficient assessment of the risks presented by fire at two hotels
  • In 2012, the Chumleigh Lodge Hotel and its director were fined £210,000 following a fire in 2008
  • Also in 2012, residential landlord Lookman Adeyemi was jailed for four months following a fire at one of his properties

What should businesses do?

All those involved in the commercial property sector must ensure that they are appraised of their respective responsibilities and discharge them fully. In many cases, this will involve liaising with and cooperating with other dutyholders and ensuring that a consistent approach is taken throughout the building. It is important for each party to understand the nature and extent of its duty and how this interrelates with others involved at the premises. Where external advice is required, e.g. for the completion of an asbestos survey or fire risk assessment, it is vital to ensure the competence of the consultant advising so as to reasonably rely upon the resulting work product.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.