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.
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.
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.