Rank: Super forum user
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This'll be a challenge just trying to explain the issue. For obvious reasons, I can't go into huge detail. Anyhow....
We have a landlord we lease property from. They have no employees.
The landlord employs a company (X) which manages the building via another company (Y).
The landlord says they have no duties in connection with L8 (via HASAWA, MHWSR, COSHH) because they are not an employer. However, company Y has employees and they are responsible for the Legionella risk.
[How am I doing so far?]
It's always been my understanding that the landlord (no matter whether actual people can be found) holds a duty along with the people that actually run the taps and keep the records. We, as tenants, also have responsibilities to our employees.
I'm having real difficulties understanding the landlord's stance. Anyone ever come across this type of thing?
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Rank: Super forum user
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I believe the landlord would be seen as the duty holder and responsible person.
The landlord can then nominate competent help to assist with discharge of duties - the contractors.
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Rank: Super forum user
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Hi there safetyamateur
It will depend on the type of lease that your organisation has with the landlord!
If it's domestic property, even then the lease conditions can move duties from the Landlord to an intermediary such as a Managing Agent or an FM company.
Frank Hallett
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Rank: Super forum user
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Thanks both.
Not domestic property.
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Rank: Super forum user
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Company Y does whatever Company X tells them to.
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Rank: Super forum user
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OK then.
Not domestic but commercial - read the lease terms thoroughly for who has duties for what.
Don't assume that the actual Landlord has any liability that is not specifically addressed in the lease.
Given your original post, I suspect that you'll find that the Landlord is not the responsible party for your legionella management unless you're in a multi-occ building as one of several tenants and there is a common source of potentially legionella contaminated water.
Frank Hallett
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Rank: Super forum user
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Cheers, Frank.
We are sole occupant.
Is there anything you can point to that would back up your suspicion about the landlord not being responsible? This'll probably go to legal beagles to sort out but would like to know about this in the meantime.
I take it my 'you can devolve the task but not the duty' is a tad simplistic but there's no doubt that the water system belongs to the building which belongs to the landlord.
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Rank: Super forum user
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How can the landlord 'have no employees'? You're obviously communicating with someone, presumably a Director at least - so also an employee! Quite possible to have no employees other than Directors, but I don't believe you can have a company in UK without Directors.
The landlord also has duties to persons not in their employment. If they seek to discharge these by contracting company X that in turn contracts company Y, then the details of these contracts (as Frank says) and how diligently the landlord set them up and monitored that the arrangements were effective in practice could be an area of interest if there was an incident or accident?
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Rank: Super forum user
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Thanks, imwaldra.
Yes, my head explodes at this contention about nil employees but that's what they claim (well, Company X on behalf of landlord).
Likewise, I struggle with this ability to contract out the responsibility (at least in respect of COSHH/L8). Opens a whole new world for me.
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Rank: Super forum user
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OK safetyamateur, Whether the Landlord or their Agent [Intermediary] has any employees is simply not relevant to your occupation of the property.
As it's a single-occupancy commercial premise, it's all about the lease conditions; only after you've identifed who is responsible for what within the lease can you proceed with apportioning responsibility for anything.
Your observation re "devolve the task but not the duty is", in this context, only determined by what the lease says about specific topics.
Let's just consider your legionella:
Your company leases the property, and for this argument, the Landlord retains the duty under the lease to maintain the water distribution systems throughout. In this very simplified, and unlikely, example, the Landlord will be responsible for the maintenance of the system in an acceptably legionella-free condition. This will mean the Landlords water safety contractor having the right to enter at periods determined by the Landlord - not you - and to go wherever they need to go without you having the ability to prevent them [all subject to an identified degree of "reasonableness" in the Lease]. I'm sure that you can see where this is going, so I'm stopping there.
Frank Hallett
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Rank: Super forum user
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Rank: Super forum user
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I'm with Frank on this.
It seems likely if you're in control of the entire premises that you will effectively be taking on the duty to assess and control legionella risks (despite their protestations the landlord will arguably always have some involvement regarding incoming mains and quality of the plant they lease to you) unless this is specifically discussed and delegated within the tenancy agreement.
On the plus side this exact issue is highly likely to be addressed in the final version of HSG274 which should hopefully be published within the next 3 months.
There is some London based guidance available from City of London and City of Westminster on the issue if you google around for it although its not totally applicable to your scenario.
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Rank: Super forum user
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Thanks, Xavier123.
I guess there have been a few dingdongs over this type of thing over the years.
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Rank: Forum user
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Duty is assigned via the relevant legislation, not the ACoP (L8). If the company has no employees - presumably they may be employed by a parent company and seconded to an SPV (as this sounds like PFI to me) then no duty can be assigned as an employer.
A duty does exist however under HASAWA which requires them to do whatever is required as far as the extent of their control allows. This might be for example, employing a competent contractor to maintain the systems for them via contract. They will then need to evidence monitoring the contractor and coordinating activity to demonstrate they are doing what is reasonable for them to do in their position.
Then the FM company and the occupier would have employers duties via COSHH etc.
So in summary, all would be regarded as duty holders, but the SPV (if that is indeed what it is) have a duty limited to and by HASAWA. The other stakeholders being duty holders in line with the requirements set within L8.
Phew...!
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Doesn't the landlords (property owners / initial controller of the premises) responsibility come from / start with the Occupiers Liability Act 1957. Then depending on the contractual conditions set out with any Tenants or say facility Management Company’s, either delegate those responsibilities or retain them?
In this instance it appears that they have delegated via contract these responsibilities to others.
Or have I got this wrong?
Chris
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Rank: Super forum user
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Forgot to add
Where you have " This'll probably go to legal beagles to sort out"
It could be interesting to know what they come up with, if your willing at the end of the day.
Chris
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Agreed, very interesting. And I will share whatever I can.
It does indeed appear that the landlord has transferred responsibilities via contract.
And well done whoever sniffed out PFI in this!
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Rank: Super forum user
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I think Frank is correct. I would suggest that the answer to this is likely to lie in the terms of the lease. Full repair and maintenance leases are common practice. I would start there.
The landlord may not be the occupier for the purposes of OLA, 'You' might well be.
Similarly, the landlord might not be an employer. The fact that you can talk to him/her, doesn't make them an employer.
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