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Brian O'Connor
Member - 1 post
We have visitors to our site who are ex-employees. They use some buildings to carry on their hobby - restoration of old and model aircraft, and a building used as a flying club house. They receive no remuneration from us nor do they pay any rent. They are the only persons present in these buildings.
The buildings contain, by and large their own tools and equipment, some of which does not comply with current H & S legislation. In addition there are substantial quantities of flammable and hazardous substances both in and outside the buildings.
On inspecting these buildings it is apparent that there are many hazardous conditions present that constitute both a safety risk and a fire risk.
What is our legal position as the occupier? What are our obligations to these people (who are not employees or contractors) for their activities, using their own equipment in our premises? We as the occupier provide electricity, and water to these buildings.
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Iain MacLeod
Member - 54 posts
Brian
You have specific responsibilities under under sections 3 & 4 of the Health and safety at Work etc Act 1974 and the Occupiers Liability Act 1957. See detail below. As the duty holder you should conduct a risk assessment of the activities they are carrying out in accordance with Regulation 3 of the Management of Health and Safety at Work Regulations and the Control of substances Hazardous to Health regulations where hazardous substances are in use.
You are also required to conduct a fire risk assessment of the premises.
I would suggest you visit the HSE website at http://www.hse.gov.uk/ for further information on this matter.
Health and Safety at Work Act
3 General duties of employers and self-employed to persons other than their employees
4 General duties of persons concerned with premises to persons other than their employees
(1) This section has effect for imposing on persons duties in relation to those who?
(a) are not their employees; but
(b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there, and applies to premises so made available and other non-domestic premises used in connection with them.
(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.
(3) Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to?
(a) the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or
(b) the safety of or the absence of risks to health arising from plant or substances in any such premises; that person shall be treated, for the purposes of subsection (2) above, as being a person who has control of the matters to which his obligation extends.
(4) Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).
Occupiers Liability Act 1957
(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.
(1) An occupier of premises owes the same duty, the ?common duty of care?, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
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Smita Jamdar - Martineau Solicitors
Online advisor - 17 posts
The basic legal position is that as the occupier of the premises you owe a duty to take reasonable care to ensure that visitors to your premises are reasonably safe for the purposes for which you have invited them or permitted them to enter the premises. Therefore, if any of the risks to your visitors are caused by the state of the premises, or by what you do on them, then you have to take steps to address those risks.
The duty does not, in my view, extend to risks caused by how your visitors do the things that you have let them on to your site to do. Based on what you have told me, if, for example, the flammable/hazardous substances are yours and pose a risk to your visitors, then you do need to address that risk by storing the substances elsewhere or more safely. However, if they are their own substances, then you do not have to take action (but see below).
As far as the health and safety legislation is concerned, you do not have any direct responsibility to address how they carry out their hobby, or the tools they use. However, if there are any risks to them because of how you conduct your undertaking on the rest of the site, then you have to do all that is reasonably practicable to ensure their safety by addressing those risks. They themselves are not covered by the Health & Safety at Work Act, because they are not an employer, nor are they at work. The obligations to ensure safe system of work and the requirement to keep tools and equipment at a certain standard do not therefore apply to them.
That?s the legal position. However, the reality is if one of them is seriously injured or killed, or if they set fire to your building, then you will be affected by the practical aftermath of that, whether or not you have any legal liability. Some practical steps that I would suggest you take are:-
Ask them to nominate one of them to be responsible for the safety of their activities and to tell you about any substances they bring on site and how they intend to store them. Make sure that you make it clear that you want this information to protect your employees and business and property, not because you are going to vet their arrangements. If possible, put this in writing or at least keep a record of any conversation you have with them.
Make sure that they know your procedures for evacuation in the case of fire, and that they nominate a marshall to oversee the evacuation and to tell you if there is a fire caused by their activities. Again, record this request.
Check your insurance policies, particularly your buildings insurance, to make sure that their activities will not vitiate the insurance policy.
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