Posted By Nick Egan
As SF day rapidly approaches I am wondering what may be your views on just who is liable for non-compliance and risks the fixed penalties, prosecution and a criminal record?

The individual persistent smoker in a smoke free place obviously. But scanning the forum I see that employers are mentioned as having "duties". Yet my reading of the legislation does not reveal any duty on an employer. Are people taking a too H&S-centric view?

My interpretation is that the individual manager as the most likely person "in control" of a premises or vehicle may be personally liable to fixed penalties, prosecution and on conviction a fine & criminal record. It will not be the employer as a body corporate as would be case under H&SAWA, there is no provision in the SF legislation for it to be otherwise.
Nick

Posted By Heather Collins
Paul

No it just allows for individual managers to be prosecuted as well as the company, but only where the offence is committed by a "Body Corporate".

The Act itself and all the relevant Regulations refer to the Dut Holder as being "the person or persons with management responsibility".

Posted By Nick Egan
Hmm
Thanks for those responses. I think then that either way, the practicality of taking enforcement action will mean that managers will be first in line and only if they can show a complete lack of any kind of policy from above will the spotlight move on to the employer/landlord etc.

I raised this because I felt that individual managers are more immediately at risk of enforcement action than would be the case under H&SAW and they should be aware it's them that need to make sure the signs are up, remain in place and are adhered to.
Nick

Posted By andrew morris
Hi,

I think you are reading too much and not enough in to the wording of Section 6 & 8 of the health act.

"It is the duty of any person who occupies or is concerned in the management"

"Person" is interpreted by various acts (which allow the definition to be transposed in to the health act) to include bodies corporate, including those limited by guarantee [i.e. charities]. (Trust me on this)

I also think any decent inspector/enforcement officer would be able to prove that the managing company, not just the actual manager, were "concerned in the management". Otherwise, the manager would have no one to report to.

The company have to put in place a policy, which is likely to be written by the manager. It whould be signed and adopted by someone within the company who has the correct authority, as it is likely to include reference to disciplining staff who refuse to comply (to the point of being fired) and removing visitors from the builsing who smoke.

Posted By mrs.seed
please ignore me I went completely off track, must read properly before posting