Does Your Company Lease Your Premises? Part 1
Questions which are often raised with Consultants are:
- Does a commercial landlord have any legal responsibilities for safety in the premises they are leasing?
- Where they do, do those responsibilities impact on the legal responsibilities of an employer who is also a tenant?
Produced in three parts, this part (1) concentrates on the fire safety aspect.
As a general rule, responsibility to maintain equipment and or the premises will depend on the terms of the lease but it should be understood that responsibility for the safety of employees or others that can be impacted by your organisations activities always lies with the employer, so it is important that the lease is read and understood before being agreed to, as there are a number of considerations to be taken into account, many of which relate to the safety and health of site users, be they employees or visitors, for which the following should be regarded as a guide.
The legal standpoint is that the person with control of the premises will be responsible for fire safety on the premises. This can often be the tenant if they employ the people who work at the premises and are the only tenant.
In a building where there is more than one leaser, whilst all the individual employers will hold the duty to safeguard their own employees, they may have no input regarding the buildings fire safety equipment or the way it is managed.
However, there is a duty on employers to look after the fire safety of their employees and other relevant persons who come to the site on or for their behalf and ensure that, where required, fire safety procedures are in place and safety equipment in place is in receipt of required upkeep, so asking relevant questions of the landlord and just as importantly, gathering evidence from them, is essential.
A Landlord can also be partly responsible for buildings or parts of a building they continue to manage regardless of size, which may mean that they are responsible for taking care of fire precautions or equipment but only in communal (shared) areas, and or just for a buildings fire alarm if it is a fitted system.
So, the lease needs to clearly demonstrate:
- Who is responsible for conducting the fire risk assessment and producing the legally required fire risk assessment record?
Landlords will often have a fire risk assessment record in place stating any hazards presented by the site itself (gas installations and pipework, electrical installations, numbers of floors, use of stairwells etc.), the hazards arising from activities carried out on the site (hot-work, woodworking, machinery use, use and or storage of flammables and or combustibles etc.) and the personnel using the site (disabled or vulnerable persons etc), especially where there is a shared tenancy, a multi floor site or a specific hazard due to the layout of or activities conducted on site.
If this is the case, as there is a legal duty for any employer to ensure a fire risk assessment is conducted and being reviewed, but no point in producing another document, check that the assessment is current (reviewed within the last twelve months), that it takes your own activities into account as necessary, and ensure that you (and your employees) understand any perceived risk and will act as per any requirements of the findings placed upon site users, for their safety.
Holding a copy of the assessment for your own records will also allow you to demonstrate what is being done – on your behalf.
If, however you are the only tenant and or classed as being “in charge” of the premises, the landlord could well expect you (as the law does) to conduct, or arrange to have produced, your own fire risk assessment. Be aware that competency can be an issue if the premises warrants a level of competency to assess it and it may be necessary to get a suitably competent person to assist in this matter.
Guidance on Fire Risk Assessment has been provided to assist, within the Manual 2 provided as a part of the management system issued.
- The lease should determine who is responsible for the upkeep of the following although it may not list all the following specifically.
- The fire alarm system (weekly testing and 6 monthly servicing)?
- The emergency lighting (monthly testing and annual servicing) (both internal and external if fitted)?
- The internal escape routes, including flooring, doors (fire doors, fire exits and final exits), lighting and signage and who will carry out checks of said fixtures, fittings and or equipment and how often?
- Any external escape routes (including upkeep – clearing of overgrowth, escape lighting and signage, escape stairs) and who will carry out checks of said fixtures, fittings and how often?
- Firefighting equipment (monthly check and annual service)?
- Instigating fire drills and their subsequent recording and if required, follow up?
It is also crucial that you know where the evidence that all the above is occurring is being kept and that it is readily available (on the premises)? This will allow you to be able to demonstrate how things are managed if questions are asked (your due diligence is being questioned) and evidence is being requested to confirm said management by an enforcement officer.
Lastly, if the landlord is organising or recommending the employer provides any training or has determined that there is a further training need, as determined either by the assessment process and its reviews or the drill process, the employer will have a duty to co-operate with the landlord with regards to fire safety management, where the landlord takes an active role and manages the fire risk assessment process.
The overriding message to be taken from this safety alert is that the terms of a commercial lease are crucial in setting out a landlord’s and tenants’ responsibilities. This is especially relevant in relation to fire safety issues. Where these are passed onto the tenant the terms of the lease should clearly state that no residual liability falls on the landlord.