Last reviewed 8 September 2020
Gordon Tranter looks at how responsibility for health and safety is shared in premises with more than one business or tenant.
In workplace premises in which there are several businesses or other organisations, and also in domestic premises where there are common areas such as corridors or lifts, it is essential that responsibilities for health and safety and fire safety are clearly defined and understood.
Where several businesses/organisations operate in the same building the responsibilities for health and safety are shared in accordance with who has control over different aspects of the building. Landlords and managing agents need to ensure that the lease or commercial tenancy agreements clearly define who has responsibility for what. Lack of clarity around roles and responsibilities can lead to increased risks because safety is not adequately managed.
Where several businesses operate in the same building and share the use of common areas, landlords and managing agents have the responsibility for safety in these areas, unless the duties have been otherwise allocated in the contract. Thus, landlords and managing agents will usually be responsible for the health and safety of areas under their control, for example corridors, stairs and lifts, traffic routes and the provision and condition of common sanitary conveniences and washing facilities. The responsible agent should ensure there are appropriate risk assessments for activities in common areas, eg for slips, trips and falls, cleaning operations and fire safety.
Landlords’ responsibility for the tenant’s workplace depends on the extent of their control over the area. This should be clarified in the contract. Responsibilities that should be included in the contract include those for the fabric of the building, electricity and gas supply, heating and ventilation, waste disposal and, if supplied, plant. Of particular importance is the allocation of the responsibility for ensuring that measures are in place to control the risks of Legionnaires’ disease from hot and cold water systems and particularly wet air-conditioning systems.
Sharing premises with other businesses without co-operation and co-ordination can mean an increase in risks to health and safety because of the potential for misunderstanding and communication problems.
When asbestos fibres are inhaled they can cause serious diseases that currently are responsible for around 4500 deaths a year. Although the use of asbestos was prohibited in 2000, asbestos is still present in many buildings built or refurbished before the year 2000. The Control of Asbestos Regulations 2012 require duty holders to find out if there is asbestos or asbestos-containing materials (ACMs) in non-domestic premises, to keep a record of the location and condition of the asbestos or ACMs, assess the risk from the asbestos, and prepare a plan that sets out in detail how the risk is to be managed. Where there is asbestos or ACMs present in the building the key duty is to ensure that everyone who needs to know about the asbestos is told about its presence and those who might work on the material take adequate precautions. In most cases, the duty holder is the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises through an explicit agreement such as a tenancy agreement or contract.
It is therefore essential that the extent of the duty is clarified in the contract. In a building occupied by one leaseholder, it might be either the owner or leaseholder who takes on the full duty for the whole building; or the duty might be shared. In a building with several tenants the owner may take on the duty for the whole building, or the duty might be shared, eg with the owner taking responsibility for the common parts and the leaseholders taking responsibility for the parts they occupy.
Co-operation and co-ordination
Where two or more employers share a workplace, the Management Health and Safety at Work Regulations 1999 require each employer to:
co-operate with the other employers concerned, so far as is necessary to enable them to comply with the health and safety legislation
take all reasonable steps to co-ordinate the measures they take to comply with the legislation with the measures taken by the other employers concerned.
In addition, each employer must take all reasonable steps to inform the other employers concerned of the risks to their employees' health and safety arising out of, or in connection with, the conduct by them of their undertaking. Landlords and managers will have to co-ordinate and co-operate with the tenants in residential premises to ensure compliance with their health and safety duties.
Responsibility for fire safety
The Regulatory Reform (Fire Safety) Order 2005 requires the responsible person to:
carry out a fire risk assessment identifying any possible dangers and risks
eliminate or reduce the risk from fire as far as is reasonably possible
provide general fire precautions to deal with any possible residual risk
create a plan to deal with any emergency.
Under the Order, anyone who has control of premises or anyone who has a degree of control over certain areas or systems may be a “responsible person”. In shared premises the responsible person for shared parts of premises or shared fire safety equipment, such as fire-warning systems or sprinklers, could be the managing agent or owner or any other person who has some control over a part of the premises. The responsible person will have to co-operate with tenants to agree the emergency procedures and to arrange and carry out fire drills. In some shared premises, it's likely there'll be more than one responsible person and there will be a need to co-ordinate the fire safety plans.
Residential premises are clearly domestic premises. However, in the case Westminster City Council v Select Management Ltd (1984), when the latter contested an improvement notice relating to the lifts and electrical equipment that serviced the common parts of the block of flats it managed, the Court of Appeal ruled the common parts were non-domestic. The common parts were available to persons who were not in the employment of the flat owners as a place of work. The general duties under the Health and Safety at Work, etc Act 1974 cover people employed by the company: caretakers, cleaners, etc, as well as residents, contractors and members of the public who use the common parts. There is no legal definition of “common areas” so what they cover will depend on the wording of the lease. However, it usually means all areas that the individual leaseholders do not own, ie the structure, roof, guttering, water tanks, stairs, walkways, gardens, and, in managed estates, the roads.
Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) the person responsible for reporting the death, major injury, over-seven-day injury, or case of an occupational disease of an employee at work is the employee’s employer. However, the death, major injury, over-seven-day injury, or case of disease of a self-employed person at work in premises under the control of someone else must be reported by the person in charge of the premises at the time of the event. Similarly the death, or injury requiring removal to a hospital for treatment of a person who is not at work (but is affected by the work of someone else), eg a member of the public, a student, a resident of a nursing home, must be reported by the person in control of the premises at the time. Once again, where there are shared areas, it is important to identify the person responsible for making reports in a given situation.
Whenever there are shared premises, it is essential that the responsible person or persons are identified in the leaseholder’s/tenant’s contract to clarify who holds the responsibility for health and safety. Employers whose activities and issues may put others sharing the premises at risk must co-operate and communicate with them.