Last reviewed 22 January 2014
Much health and safety legislation and practice focuses on the statutory duty holder being responsible for things either being done right or being put right. John Kersey discusses how to identify duty holders and what their role involves.
Much health and safety legislation and practice focuses on the statutory duty holder being responsible for things either being done right or being put right.
Some key questions to consider with regards to the duty holder are:
who is the duty holder, as an organisation or as an individual?
what, in particular, are they responsible for?
who is owed the responsibility?
This is quite topical, as the new Fees for Intervention under the Health and Safety (Fees) Regulations 2012 (FFI 2012) makes duty holders responsible for fees where the Health and Safety Executive (HSE) intervenes in breaches of health and safety law. These legal duties are set out by statutory Acts or regulations made under those Acts, and may be qualified by the application and interpretation clauses of the legislation.
Take the case of asbestos management within non-domestic premises, for example. Under regulation 4 of the Control of Asbestos Regulations 2012 there are a number of requirements to manage asbestos including taking reasonable steps to find out whether asbestos-containing materials are present and, if so, in what amounts, where and in what condition. This is in addition to a number of other specific duties.
Contrast this with the Health and Safety at Work, etc Act 1974 (HSWA), where general legal duties are set out in s.2 to provide for the health, safety and welfare at work of employees. This is further clarified as relating to:
plant and systems of work
use, handling, storage and transport of articles and substances
information, instruction, training and supervision
place of work including access and egress
working environment including facilities and arrangements for welfare.
These duties are rather broad in scope so, in the main, would devolve to the employer as a legal entity.
Who is the duty holder?
This leads us to the question of who is the duty holder. We can see this as a “virtual person” known as a persona ficta in legal terms, such as a corporate body. Otherwise, it may be an identified human being known as a “natural person” who may take on the duty holder role by virtue of his or her job role, or as identified as such in documentation required by legislation.
In the instance of HSWA, s.4, it refers to a person “who has, to any extent, control of premises”, who may be an identified person with that specific responsibility within an organisation or a landlord. Specific legislation, mainly in the form of an Approved Code of Practice (ACOP), looks at an identified duty holder, eg obligations under ACOP L8 for the control of legionella bacteria in water systems. In other legislation, such as the Electricity at Work Regulations 1989, the duty holders have been commonly interpreted as “everyone who is involved with electricity, ie working on it, working with it and/or using it, from the engineer in the main switch room to the person on the shop floor pressing the trigger on a power drill” (Electrical Safety Guide for “Duty Holders”, British Gas Business). From this definition we can see there would be a wide variety of persons within an organisation who would be duty holders, but the duty they have would be very different.
Where, for example, a person carries out gas installation work, they would be a duty holder under the Gas Safety (Installation and Use) Regulations 1998. Where they do not meet these duties, they can be prosecuted and held accountable for their acts and omissions.
This can also be the case for identified individuals within organisations, such as Barrow Borough Council after the outbreak of legionella at Barrow-in-Furness in August 2002. In this instance, the manager of a council Design Services Group was held liable as an individual after appeal for offences under s.7 of HSWA as an employee; albeit one with specific duties. This came about because she was involved with certain acts that were contrary to the ACOP for prevention of legionella. The HSE investigation report C1 03/07 Report of the Public Meetings into the Legionella Outbreak in Barrow-in-Furness, August 2002 provides a salutary lesson for those in positions of responsibility within facilities management.
Duty holders would be wise to know exactly what they must be responsible for. In the recently revised ACOP L8 Legionnaires’ Disease. The Control of Legionella Bacteria in Water Systems (2013), specific duties are to:
identify and assess sources of risk
prepare a written scheme for preventing or controlling the risk (if required by the source of risk)
implement, manage and monitor precautions to ensure the risk is controlled
keep records of the precautions
appoint a competent person to help take the measures needed to comply with the law.
The regulations, Codes of Practice and guidance all detail how that duty may be met. Where individuals do not have the technical knowledge and expertise to discharge their duties, they may need to resort to competent resources in order to do so. They would still be expected to establish the competence of those resources and make sure that the duties are met; in many cases competency is defined within the ACOP. This may include certain procedures or membership of certain institutions, trade bodies or registers.
As to whom duty holders are responsible to, this can be quite a wide field. In the case of HSWA, the general duties are owed to specific groups of people:
as an employer to employees under s.2 and s.9
as an employer or self-employed person to people other than employees under s.3
as a person concerned with premises to persons other than his or her employees under s.4
as a person in control of certain premises in respect of harmful emissions into the atmosphere under s.5
as a designer/manufacturer/importer/supplier/installer or erector to those that may use the article or fairground equipment at work under s.6
as an employee to fellow employees or others affected by his or her acts and omissions under s.7
as a general group of persons not to interfere with health, safety and welfare provisions under s.8.
In the case of specific legislation, the duty may be limited to certain groups under prescribed conditions, eg to “relevant persons” under fire safety legislation who are defined as “any person (including the responsible person) who is or may be lawfully on the premises and, any person in the immediate vicinity of the premises who is at risk from a fire on the premises”.
More than one duty holder?
In some situations there are multiple duty holders to consider, for example in buildings with multiple organisations in occupation, where there may be a landlord or management company, several tenants and various contractors working. This is often relevant with regard to the asbestos regulations. In this instance, the requirements for co-operation and co-ordination under the Management of Health and Safety Regulations 1999, s.11, are a good start in clarifying responsibilities.
Fire safety is another area where multi-duty holder solutions apply, in particular multi-occupancy buildings. The relevant parties acting as “responsible person” in terms of the Regulatory Reform (Fire Safety) Order 2005 will need to be defined.