Posted By sylvia
Don't see how a Franchisor has legal responsibility for franchisee workers, unless all staff in the franchise operation are employed by the franchisor. The arrangement between franchisor and franchise holders is purely a contractual one. There is no employment arrangement. It wouldn't work otherwise. You sell the "idea" and the packaging to someone who wants to set up their own business without having to invent from scratch. Each franchisee is self-employed, and will engage own staff if needed.
Access to a central advisory service is simply that. It's a free consultancy.
HSG65 is not likely to provide any answers to this.

Posted By David P. Johnson
This situation is, in theory anyway, much simpler than you might imagine.

The Franchiser has no responsibilities in law whatsoever to the franchisees regarding OSH, in terms of ensuring compliance.

The Franchisee is the employer, it is their sole responsibility to comply.

The Franchiser has a vested interest in making sure the Franchisee complies, since it's his corporate image at stake, despite his lack of legal liability.

The Franchiser's OHS Adviser in effect therefore provides "consultancy" services to the Franchisee to help them comply.

The Franchiser now has to ensure the advice given is both competent and suitable, and the Franchisee still needs to appoint somebody internally to assist with the management of Health and Safety.

Does this help?...

DJ

Posted By Adrian Watson
Frank,

The relationship is in theory simple as the contract between the two parties is not a contact of employment. As such there is no responsibilty under s2, however there may be duties under s3.

Regards Adrian

Posted By David P. Johnson
(Quotes are from Frank Hallet earlier in this thread)

"Interesting point David, but somewhat over simplified I think."

It is as far as I can see a simple situation Frank. :-)

"Given the original info from Sue, how would you see the relationship of the Franchisee with the Franchisor & their H&S Advisor [which appears to be the primary source of H&S info and support] with regard to HSWA Ss 36 & 37 and also MHSW Regs 7 & 21?"

As I stated earlier, the Franchiser is in effect providing consultancy services. Reg. 7 of MHSWR provides for appointed persons to be outside of employment - hence the thriving H&S consultancy industry that exists. The only consideration here is that, rather than charging for the service, it is provided freely due to the vested interest the Franchisor has - he takes (presumably) a cut of the Franchisees profit - so makes things as easy as possible; and by the same note wants to ensure the image of the Franchise isn't brought into disrepute (bad PR). Reg. 21 of course ensures the Franchisor must provide competent advice when he is asked to advise; a point I did address in my original post. Again, as for S36 and S37 respectively of the HASAWA, they would apply to the Franchisor in the same capacity of any other consultant.

"I still think that it will come down to unravelling the precise contractual relationship and the degree of autonomy enjoyed [or not] by the Franchisee."

Prima facie the information given by the original poster, this is a standard Franchise relationship. Therefore, the Franchisee is a separate business to the Franchiser; they just pay for the privilege of using their logo, PR and products. Now, unless in the few hours since my first post, whilst I've been out doing the pub quiz [which I lost :-(], Mr. Blair and Big John have reformed Health and Safety legislation, you cannot contract out your duties or liabilities as an employer to a consultant; so I can't really see the contract having a bearing on this.

"This also has considerable implications for the RRFSO folks - so where are the fire legislation academics on this?"

Not being completely swotted up on the RRFSO as yet (not my remit as yet), I wouldn't like to comment.

DJ

Posted By Sue Powell
Thanks everyone for the information and discussion which has been helpful in itself.

Well hijacked Frank but you appear to have done me a service as I have been indisposed for a couple of weeks, so keeping the thoughts progressing was well worth while!

Thanks again everyone.

Sue

Posted By Adrian Watson
Frank,

Everybody at work, is employer, employee or self employed, so a person would be caught somewhere by HSWA 74 S3 (1) or S3 (2) or S7.

3.-(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

Therefore if a consultant (franchisor) is appointed by an employer under Reg 7 of the Management of Health and Safety at Work Regulations 1999, the consultant would have a duty under section 3 of the HSWA 74. Likewise if the franchisor imposed conditions in a contract upon a franchisee regarding equipment, premises layout etc, and then the franchisor would acquire duties under S3 as an employer/self employed and S6 as a designer.

Regards Adrian.