The Legal Column - Nov 11

30 November 2011

The experts at Workplace Law answer your legislative and compliance issues.

TUPE - Transfer of Undertakings (Protection of Employment) Regulations
Q: We are currently undertaking the TUPE process on a new maintenance contract. One of the individuals works a 40-hour week, but only 21 of those hours are associated directly with this contract. Are they still covered by the TUPE process, and would we be TUPE transferring them just for the 21 hours or the full 40 hours?

A: Usually only those employees who work wholly or mainly in connection with the business or activity will be caught under TUPE, i.e. anyone who spends more than 51% of his or her time in the business or activity.
In some circumstances employees can agree to remain with the transferor (providing they will agree to this) if there is sufficient work for them, which may be the case here. This is an issue that needs to be discussed in the first instance with the transferor to agree the preferred option for you both and then through consultation, with the employee.

Fire Safety - Chairs
Q: Do new chairs intended to be set up in rows in meeting rooms have to be fixed to each other for ‘safe evacuation’ (e.g. cannot be pushed back into the path of someone behind them)? If so what Guidance / Regs cover it?

A: There are no Regulations to say that chairs have to be fixed to each other (or otherwise). The key consideration is the calculation of travel distances from the furthest part of the room to an escape corridor or final exit. Consider the distance to be travelled by people when escaping, allowing for walking around fixtures and fittings. For a lower risk area like this you are looking at approximately 60m where there is more than one exit or 25m where only a single escape route is provided. See government guidance: www.communities.gov.uk/publications/fire/firesafetyrisk2

Air Conditioning Regulations
Q: Do you have any firm information on air conditioning regulations as the only information out there appears to be from companies trying to cash in?

A: The Environmental Protection (Controls on Ozone-Depleting Substances) Regulations 2002 and Fluorinated Greenhouse Gas Regulations 2009 require regular leak detection assessments to be carried out on stationary air conditioning and refrigeration equipment and apply if refrigerant quantity is above 3kg. The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 require energy efficiency assessments to be carried out on air conditioning systems larger than 12kW. www.defra.gov.uk has specific guidance on the requirements of F Gas and Ozone Depleting Substances regulations.

Asbestos checks
Q: The current company I work for had an asbestos check back in 2004. I was wondering how often these checks should be carried out?

A: The duty to manage asbestos is contained in Regulation 4 of the Control of Asbestos Regulations 2006. The duty-holder must take reasonable steps to identify whether asbestos-containing materials (ACMs) are on the premises, and record their location and condition. The condition of ACMs should be checked on an annual basis to ensure that there have been no changes or deterioration in their condition. As you last had a formal review in 2004, it would be advisable to conduct a new survey and draw up a fresh Asbestos Management Plan for the property.

Further information

Workplace Law specialises in the provision of employment law, health and safety and environmental management support in the FM sector. www.workplacelaw.net If you have a question that you would like addressed in this column please email it to the editor at tim.fryer@imlgroup.co.uk