Welcome Guest! The IOSH forums are a free resource to both members and non-members. Login or register to use them

Postings made by forum users are personal opinions. IOSH is not responsible for the content or accuracy of any of the information contained in forum postings. Please carefully consider any advice you receive.

Notification

Icon
Error

Options
Go to last post Go to first unread
shell56006  
#1 Posted : 24 May 2018 07:00:01(UTC)
Rank: Forum user
shell56006

A company that rents a part of the building off my employer has no safety personnel in place - they are a New Zealand run business and are starting a small manufacturing buisness in the UK (on our premises), During a meeting yesterday regarding work i noticed they are carrying out needing permits, it became clear there was no Policy or written Risk assessments in place (they employ 7 people so far in the UK) nor was there safety person in place - No one wanted to be the responsible person and claimed that managers dont need to know about H&S and if not trained cannot be held accountable (told them the refer to section 3 & section 37 of the HSAWA)

My companies Operations driector then said to me when i highlighted this- you'd better get writing risk assessments quickly then

Heres my concern - I am not emoplyed by this company so does me advising them and writing risk assessments /safe work instructions etc etc for them make me a safety consultant & liable for them in this case?

To me they are a seperate company - they are the experts in their field - if they have no H&S experience in the UK - I suggest they enroll all the managers on a course- & get a consultant in to advise 

The Operations director is going to try forcing me to take this on - Am i within my rights to refuse? or am i being over cautious?

thanks in advance for any replies

andybz  
#2 Posted : 24 May 2018 07:07:40(UTC)
Rank: Super forum user
andybz

If your director is instructing you to do this I can't see how you would then become liable. 

You can argue about who should be doing the risk assessments, but the most important thing is to ensure everyone is safe.

lorna  
#3 Posted : 24 May 2018 08:32:37(UTC)
Rank: Forum user
lorna

I was put in a similar position once - I asked my employer to show me that the professional indemnity insurance they held for me covered advising/working for somebody else. It didn't so I didn't.

Hsquared14  
#4 Posted : 24 May 2018 08:37:59(UTC)
Rank: Super forum user
Hsquared14

I have to say I do disagree somewhat with Andybz - this would in my book come under the heading of "consent and connivance"  and everyone involved could cop a piece of the pie if anything went wrong and the HSE got involved.   I would do a full report point by point setting out all the legal issues and consequences of taking this course of action and politely but firmly refuse. 

I would also point out that they have a duty to undertake some degree of due diligence assessment on anyone they rent part of their premises to and not doing this could have consequences where their EL, PL and fire insurance are concerned.  I've been involved in several post loss surveys where this was the issue and the insurer refused to pay out due to negligence on the part of the insured.

It might be a career move but if faced with this sort of duress I would be seriously questioning if this was the job I really wanted!!

Elfin Davy 09  
#5 Posted : 24 May 2018 09:32:59(UTC)
Rank: Super forum user
Elfin Davy 09

shell56006

Obviously we haven't got the full details of the arrangements (and contractual terms) of the business who are renting, but it would appear that in reality, it isn't your problem (or that of your employer), so it may well be best to just let them get on with it (and if they fall foul of the law and/or regulators, then so be it, but that's down to them rather than you).

If they're a stand-alone company, health and safety is their responsibility, and you've effectively discharged your duty by pointing this out to them (and your boss).  I certainly wouldn't be writing up risk assessments (or any other form of documentation) for them as this will implicate you if things go awry.

I'm not entirely sure why your Ops Director is so keen to become involved (or involve the business) either to be honest, but possibly the best advice you can give him is to take a step back too ?

andybz  
#6 Posted : 24 May 2018 09:57:32(UTC)
Rank: Super forum user
andybz

Do we really believe Shell56006 would be held personally liable if there was an issue after he/she provided some support in this circumstance?  I believe this is the question.  I understand that his/her employer may have something to answer, but that is a different issue.

I am bothered by the idea of leaving them to get on with it.  I understand the legal implications but I would like to think we are far more bothered about safety.  The insurance issue is a valid question, but policies can be amended easily if required.

Perhaps the director in question wants to help the enterprise getting started.  After all, if they are successful they are going to be paying rent, which clearly is a benefit.  Also, if the tenant were to have an accident it could have a wide ranging effect.

But maybe I am wrong!

RayRapp  
#7 Posted : 24 May 2018 10:08:11(UTC)
Rank: Super forum user
RayRapp

I would have thought the best solution would be to advise the company (they must have a person in charge) to arrange their own h&s documentation. Cannot see why the 'landlord' would want to get involved by providing h&s docmentation because if something should go wrong there is an argument the provider of the documentation may be partly liable.  

Elfin Davy 09  
#8 Posted : 24 May 2018 10:19:30(UTC)
Rank: Super forum user
Elfin Davy 09

andybz

I appreciate where you're coming from, but I still wouldn't want to become deeply involved (unless contractually I had agreed to do so).  It would appear that the renting company are intending to set up a new venture, yet can't be bothered to consider their health and safety legal duties (or maybe they have and simply don't care ?).  Either way, it is likely that anything produced by others "to ease their burden" won't be used or followed anyway (unless of course it's to say "..well they told me to do that !" when it all goes ***'s up).

Give them guidance by all means (and even support in the form of advice if they need help), but then it's down to them.  I understand the moral dilemma of leaving them to it, but sometimes you can't take the world on (particularly if you don't need to).

Hsquared14  
#9 Posted : 24 May 2018 11:56:36(UTC)
Rank: Super forum user
Hsquared14

I wouldn't want to get involved with providing advice do a due diligence report and step away.  There have been lots of high profile personal prosecutions of people who have done risk assessments, given advice etc which has later been found to be lacking in some way even though they had no control over what happened in the workplace. The one that most readily springs to mind is the Fatty Arbuckle case.    Tell them what they need to do, make sure that nothing they do could kill or injure any of your employees or burn you down and leave it at that.

A Kurdziel  
#10 Posted : 29 May 2018 15:17:27(UTC)
Rank: Super forum user
A Kurdziel

Well it’s not just a case of “writing a few risk assessments” is it! Now if they have nothing in place you need to create H&S policy from scratch- what fun! This will take time and resource and most importantly they (the tenants) will need to provide you with answers to lots of questions. Ask them in detail for those answers. Who does what and how, what equipment they use, what training they have what records they have etc. -fill your boots. You have been designated the expert so provide them with an expert service. If they cry uncle and say, “no more we are not interested!”  Get them to say that in writing. So now you are fully covered!

chris.packham  
#11 Posted : 29 May 2018 15:51:02(UTC)
Rank: Super forum user
chris.packham

I would add to the previous posting that the records should include the health surveillance they have, also their records of any accidents and cases of work-related ill health. I doubt from what you have described that they will have any so, in accordance with para 10 of the latest ACoP for COSHH you could point out that they are certainly in the firing line.

Chris

andybz  
#12 Posted : 29 May 2018 16:23:09(UTC)
Rank: Super forum user
andybz

Do we really think Shell56006 would be held personally liable as a result of 'helping out' under direct instruction of their Director?  That was the question (as far as I understood). 

And alternatively, could they really not be held liable if they refused to get involved even if they knew there were significant risks. 

A Kurdziel  
#13 Posted : 30 May 2018 08:29:29(UTC)
Rank: Super forum user
A Kurdziel

Personally I don’t think that any liability exists in relation to the tenant company as long as the relationship is just that: landlord and tenant. If the boss tells you to provide H&S advice for the tenants, then that is their privilege but you must then provide a comprehensive fully professional service (not just a few risk assessments).

peter gotch  
#14 Posted : 31 May 2018 14:51:37(UTC)
Rank: Super forum user
peter gotch

Shell

I think you are OK as long as your instruction is clear and retrievable, and as long as terms of reference are clear and that anything you produce clearly identifies limitations to its scope.

chris42  
#15 Posted : 05 June 2018 08:14:21(UTC)
Rank: Super forum user
chris42

Surely you would be acting as a consultant to the other company, and your company’s insurance would not cover you for such an undertaking even if instructed to do so. I had this issue a few years ago, I refused to act as their advisor, but agreed to chat to them about safety.

peter gotch  
#16 Posted : 05 June 2018 14:53:32(UTC)
Rank: Super forum user
peter gotch

I'm not sure what constitutes the boundary between a chat and advice and am even less sure that the Courts would see any clear distinction.

But ultimately, there's no point in suing someone who doesn't have sufficient resources. Company does, company employee may not. Company is vicariously liable for the negligence of their employee. 

chris42  
#17 Posted : 05 June 2018 15:47:18(UTC)
Rank: Super forum user
chris42

I consider this web site a chat room for H&S issues. If I ask for help and people suggest things I don’t consider it advice as it is up to me to then check out any link provided or research what has been said. Therefore, I don’t consider it advice as such, it is a discussion of which I ultimately have to make up my own mind (which may or may not be guided by people’s comments, but my decision). Whereas someone advising me ie a paid assessor for something, I may accept their better knowledge and do what they say in the report. This is of course just the way I see it.

But in the OP’s type scenario you could have a man set up a cake making business, he then employs his wife as the safety advisor for his cake making business and he is insured for his cake making business. He then sells his cakes to some businesses and states if they buy 1,000 cup cakes he will get his employee to give them free H&S advice. Can’t be right can it as it has nothing to do with insured business. As a H&S professional surely, we know we need to be insured for the advice we give, which for our own companies is fair enough, but for others does not seem like it should be acceptable, unless the business is a consultancy and insured as such.

Mind you an interesting concept for setting up a H&S consultancy company, no need for paying insurance for many years after you wound up the consultancy business :o)

Kate  
#18 Posted : 06 June 2018 09:25:53(UTC)
Rank: Super forum user
Kate

I've been in the situation of colleagues visiting a customer's premises and being alarmed by the practices there.  What we settled on doing about this was to provide the customer with information (in the form of a link to the most relevant part of the HSE website) but not advice (for all the reasons already mentioned).

thanks 1 user thanked Kate for this useful post.
lorna on 07/06/2018(UTC)
peter gotch  
#19 Posted : 06 June 2018 11:03:09(UTC)
Rank: Super forum user
peter gotch

Sorry, Chris but your last paragraph doesn't add up. I said no point in suing an individual (assuming that they are working within the course of their employment, and not "on a frolic of their own" when their employer would be liable.

I provide health and safety advice within the context of a much broader consultancy. Sometimes a client will ask for advice on issues that would not readily be seen as falling within the terms of our appointment. At that stage, I have to strike the balance between retaining client satisfaction and the potential implications including those that might apply if I was on a frolic.

Same applies here where a lot of what I say is guarded with caution, though with a degree of protection arising from the lack of any contract.

+ the silence that you don't see as I avoid comment if I perceive any conflict with my employer's or our clients' interests.

A Kurdziel  
#20 Posted : 06 June 2018 13:19:18(UTC)
Rank: Super forum user
A Kurdziel

The issue is one of perception: what you regard as an informal chat might be construed as a consultation later on by the other party.  Once at a former job an employee, with reputation for moaning turned up in our office and preceded to whinge for 20 minutes about how unfair life is and how she was unappreciated by her boss. She also mentioned that her wrists hurt while she was doing the washing up. 6 months later a civil claim for negligence appeared on my desk stating that she was suing the organisation for not carrying out any modifications to her work despite her having informed the Health and Safety team in detail about her medical condition!

Different perception- especially over time.

chris42  
#21 Posted : 08 June 2018 10:22:35(UTC)
Rank: Super forum user
chris42

Sorry out of office for a few days. I quite agree no point in suing (Civil case) the individual as they are unlikely to have a lot of money other than tied up in their home. I thought you legally (Criminal law) had to have PL or PI insurance if you are in particular professions which I would have thought included acting as a H&S consultant (in effect). As your employer who is farming you out is unlikely to have this, surly it is not prudent for a H&S professional to therefore agree to this undertaking. Hence, I guess the OP question, who must be thinking the same.

Or are we saying you don’t legally have to have those insurances?

Chris

A Kurdziel  
#22 Posted : 08 June 2018 14:19:47(UTC)
Rank: Super forum user
A Kurdziel

The only insurance that you must have under law is car driver’s insurance and employer's liability. There is no legal requirement to have PL or PI.

thanks 1 user thanked A Kurdziel for this useful post.
chris42 on 08/06/2018(UTC)
chris42  
#23 Posted : 08 June 2018 16:02:46(UTC)
Rank: Super forum user
chris42

Originally Posted by: A Kurdziel Go to Quoted Post

The only insurance that you must have under law is car driver’s insurance and employer's liability. There is no legal requirement to have PL or PI.

I was not aware of that, thanks. I had thought it was compulsory for certain professions. On a different thread they were saying consultants had to continue buying insurance for 5 to 6 years after they stop. Within this thread there was a note that someone hadn’t and they had to sell their house.

So, it sounds like if your employer instructs you then fine as they are unlikely to come after you and take your assets. I don’t think I will be doing that though.

A Kurdziel  
#24 Posted : 11 June 2018 08:56:45(UTC)
Rank: Super forum user
A Kurdziel

It all depends on who you were working for.  At a previous role we had a number of tenant organisations (spin-offs) and we the (host organisation) agreed to provide H&S support for the tenants. It was not just a case of knocking off a few risk assessments but providing them with a fairly comprehensive set of H&S documents and setting up a small( but perfectly formed) H&S management System. This host organisation was paid to do this and I had to assign a certain number of hours per year to deliver this. It was quite clear that I was working for the hosting organisation and if anything went wrong they were the ones that carried the can, not me.   

If you are a consultant working independently it is a very good idea to carry some of personal indemnity insurance or you could end up stumping lot of money if things go wrong.

The reason that Employee Insurance is a legal requirement is due to the introduction of the Employer’s Liability (Work Equipment) Act (1968) which was introduced at the same time. This legislation places an absolute duty(civil liablity only) on employers for any injury to employees due to the failure of piece of work equipment EVEN IF IT WAS NOT THE EMPLOYER’S FAULT.  That could only work if all employers were insured.  

Users browsing this topic
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.