Phil, you make an interesting point, as I understand what you say the employer is only as responsible as the people it appoints to the many different tasks.

In the case of the PAYE manager, clerk or whatever the title given - if that person embezzles money from the company the individual will be taken to task and possibly charged with an offence and possible go to gaol.

In the case of fire risk assessment which way will the enforcers turn? To the employee or other person appointed by the responsible person to carry out the fra or to the RP itself/himself? Only time will tell.

Chris, indeed. On the other hand, if the payroll clerk had collected the wrong amount or did some other 'non deliberate' act that was in essence unlawful, I would assume that the employer (OMG there's that term again) would be held responsible.

I just think it's a 'cop out' when people adopt this 'fall back' position of saying 'it's the employers responsibility'. In most cases the employers responsibilities are actually carried out by ...............................employees.

Can you imagine the look on the Fire Officers face if the RP was simply identified as 'Employer'?

Phil,

My apologies in advance for a very long (and possibly very boring) post but in discussions like this one (which is an extremely good one by the way) the "semantics" could be very important.

The legal position is that the "employer" (i.e. the company, charity, public body) is its Board of Directors (Trustees, etc.), which accepts responsibility and liability for any task lawfully done on its behalf. This concept is enshrined in Company and Public Law and in the civil law concept of vicarious liability. It is of course a totally different story if an individual carrying out a task on the organisation's behalf deliberately breaks the law (e.g. theft of funds), in which case the individual will be held not to be acting in the "course of his employment". That is why generally, the employer will remain liable for the acts or omissions of its employees, even where it has delegated responsibility for undertaking a task to the employee. In a health and safety context it is why an employee can only be prosecuted for a breach of s.7 of HSWA where it can be shown that the employer has complied with all of its s. 2 HSWA duties.

Messeyshaw,

Why would a company, etc. be referred to as "Responsible Persons" when the organisation is a single legal entity?

I read from your post above that (whether on your advice or otherwise) your clients have delegated "control" of sites to their managers (or others). Article 5(3) of the RR(FS)O has not been tested in the courts, but it is likely that any attempt to by an organisation to delegate liability to an employee in this way would be held to be void by the Courts and the employer would remain liable. The reason is that the manager is an employee of the organisation, which therefore remains liable unless (as I have stated above) the manager goes outside the scope of his employment.

S. 5(3) is designed to apply where responsibility for complying with the Responsible Person's duties has been lawfully delegated (e.g. maintenance of fire detection and alarm equipment to a competent engineer), this would not apply to a company employee.

There is of course Article 23, which imposes a duty akin to that of S. 7 of the HSWA. However, the Fire Safety (Employees' Capabilities) (England) Regulations 2010 impose a duty on an employer not to entrust a fire safety task to an employee unless it is satisfied as to the employee's capability to undertake that task (i.e. the organisation must have complied with all its duties in selection, training, supervision, monitoring and review, to ensure the employee's capability).

On a more general note, a solicitor has a duty imposed by the Solicitors Regulatory Authority to "act in the best interest of his client" at all times unless this duty conflicts with the solicitor's duty to the court. As such, it is incumbent upon any solicitor defending an organisation for a health and safety (or fire safety) breach to provide all the possible defence/mitigation options to the client.

Where applicable this must include advising the client to seek to transfer liability for a breach to a contractor/consultant, where the breach was due to their act or omission. Consultants should therefore be very careful about advising an organisation to do something (or refrain from doing something) unless they understand the full implications of that advice, as it could well come back to haunt them in the future.

Once again, sorry for the long post.

Regards.

DJ

DJ

I don’t think that it was a boring post and while I don’t profess to be an expert in H&S law or the RRFSO etc, I can't help but feel that a more practical, pragmatic and realistic approach might be what is needed.

Of course whether there is liability and where it lies, is ultimately a matter for the courts to determine. I accept that liability often lies with the ‘employer’ but there are any number of cases where it has been found to lie with the employee as well. Barrow? That may be as the result of a S7 offence or perhaps a S36 or 37 offence.

Your interpretation of S7 is interesting though.

“In a health and safety context it is why an employee can only be prosecuted for a breach of s.7 of HSWA where it can be shown that the employer has complied with all of its s. 2 HSWA duties”.

I do not believe that a prosecution under S7 is ‘reliant’ on an employer having complied with all of it’s S2 duties or otherwise. That would be absurd and a cursory look at S7a would suggest that this is not the case, that it is a ‘stand alone’ duty, and that a prosecution under S7a is possible regardless of whether the employer has complied with all of it’s S2 duties or not.

For example, you are suggesting that an employee that committed an ’act or omission’, perhaps a gross breach of the employers health and safety rules, or who was reckless, that subsequently caused serious injury to a workmate, would not be able to be prosecuted under S7 because the employer had somewhere within the company failed to comply with an S2 duty that wasn’t either connected to or was irrelevant to that incident. That would be an absolute nonsense and I fear that your interpretation is flawed in the extreme.

In simple terms, S2 are the employers duties, and S7 are the employees, the two are not intimately connected nor ‘symbiotic’.

Joined the debate a bit late and not read every post, however with respect to the RRFSO I believe the 'responsible person' would be deemed the employer for a workplace and the landlord or tenant for premises where they may not be the employer. Moreover, individuals are rarely prosecuted where there is a duty on the employer. Where the employer delegates authority the onus is on the employer to ensure those duties have been carried out sufficiently. I do not believe that s7 HSWA will provide a defence for the employer.

It is unlikely that the court will accept that employees reckless or negligent actions is a defence where the duty holder must show that they did everything reasonably practicable to negate the risk - R v Chargot Limited 2008. Furthermore, under s21 of the MHSWR the employer nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of—(a) an employee of his, or
(b) a person appointed by him under regulation 7. Save for the rare exception (eg R v Hatton Traffic Management (HTM) [2006]).