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The Legal Column - August 2012

07 September 2012

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

Q: We are currently a service provider with our contract out to tender which means we potentially will have a TUPE situation on our hands. One of our staff does not work 100% of his time on the contract but does work more than 51% of his time on it. Should he be included as part of the TUPE list or at what percentage of time spent should he be included?

A: In law there is no specific percentage that TUPE transfers are measured by; you just need to look at where the bulk of work or tasks are completed on a regular basis. You have stated that the employee is based for more than 51% of their time on this contract, therefore it is likely that he should transfer across with the contract.

Fire panel
Q: We have one store in which the fire panel is connected to the main fire panel of the outlet, which is manned 24/7. Do we have to link our fire panel to the fire brigade or because we have somebody that can attend the store as soon as the alarm is off is this not required?
A: You don't need to link your fire alarm to the fire brigade but you will need to be able to respond to alarms. General fire precautions include having means of detecting if there is a fire and giving warning in case of a fire and you must also have measures in place to mitigate the effects of a fire. Having a quick response process, combined with all the other principles of prevention, should be considered sufficient.

Building Regulations
Q: Could you explain the retrospective requirements for compliance with Regulation 14 of the Workplace (Health Safety and Welfare Regulations) 1992. New buildings will I assume be compliant as they pass through the compliance process of Building Control but I would like clarification of what is required where an existing property portfolio is managed?

A: The key words in this specific Regulation, which refers to windows and transparent or translucent doors, gates and walls, is ‘where necessary for reasons of health and safety’ but in relation to your question our interpretation is as follows.

It would be unreasonable to replace all windows and openings in doors to meet current approved documents if the building is, for example, 40-50 years old. If considering only health and safety you should look at Risk Assessment (also consider your fire risk assessment) and apply the principles of prevention (Reg. 3, 4 Management of Health and Safety at Work Regulations 1999).

Retrospectively you would not be forced to comply with current approved documents unless ‘where necessary for the reasons of health and safety’. Other than that, health and safety environmental legislation could/should also be considered in the decision-making process.

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