Does Your Company Lease Your Premises? Part 3
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 of the Alert (3) concentrates on Electrical and Gas installations.
The person responsible for managing the electrical installation and any fixed appliances as well as the gas pipework and appliances, and other items included within a building will depend on the terms of the lease. It is a responsibility of management to ensure there is no doubt at all regarding where any legal obligation lies.
Landlords normally hold the duty to take care of the wiring system of their building and they should conduct a safety check before an initial new lease is granted and produce this to the new tenant. The responsibility for the continuing upkeep and maintenance of the electrical installation and any fixed appliances (appliances directly attached to the electrical supply) should then be set out in the lease.
The mains installation and fixed wiring will be subject to a periodical inspection (each inspector – a suitably qualified electrician – determines the period until the next inspection, which can be between 12 months and 5 years, according to its current condition) and is required to be maintained and kept in such a condition “as to be safe to use”.
If the inspections are not the responsibility of the tenant employer to organise / pay for, it is important that they know the date of the next periodical inspection and make efforts to ensure that the inspection is carried out in a timely manner with any outstanding issues resolved. In this case ask to see the current EICR “Electrical Installation Condition Report” to ensure this is the case and that any required remedial work has been carried out, with the installation considered to be in a “Satisfactory” condition. It is an employer’s responsibility to their employees and other relevant persons on the site to be in possession of this information and acting where necessary to keep the landlord “honest”. If a landlord is ignoring this, the duty held by the employer to their employees will supersede and will make the employer and possibly the landlord liable if any issues or injuries occur.
Employers need to also be looking to their insurance requirements and ensure all responsibilities are being met, which may include for fire cover that the electrical installation is kept in such a condition as to be safe and not regarded as likely to increase any fire related risk.
Tenant employers with a lease that includes the maintenance of the building will likely be responsible for the upkeep of the electrical installation and will need from the outset to be aware of the responsibility to know its current condition and to ensure it remains in such a condition as to be regarded as being safe. The minimum will be the prompt upkeep of the periodical inspection regime and the carrying out of any remedial work coming from those inspections to ensure the installation remains in a “Satisfactory” condition.
The lease should impose a requirement on the tenant employer to assess the risks regarding their use of electricity and to take steps to control any risks. This means that equipment brought in by the tenant will be their responsibility as will any risk assessment and training regarding use and any PAT testing of equipment that the company risk assessment determines should be implemented.
Where the premises are a workplace, the tenant (employer) will have primary responsibility to make sure any gas appliances in place are maintained in a safe condition. Your risk assessment should clearly state who manages the gas installation and appliances and how often with a chain of evidence referred to and accessible to allow for demonstration of the due diligence conducted.
A landlord has duties to arrange maintenance to any / all pipe work, appliances and flues, which they own and have provided for your use. If your landlord uses an agent, their duties should be depicted within their own agreement with the landlord which should give the agent the same duties that apply to the landlord.
Your landlord should arrange for an annual gas safety check to be carried out by a Gas Safe registered engineer. They must keep a record of the safety check for 2 years and issue a copy to each existing tenant within 28 days of the check being completed and issue a copy to any new tenants before they move in.
Landlord duties for LPG appliances are the same as for natural gas. They must arrange for maintenance for all LPG appliances which they own and provide for tenants and ensure a safety check is carried out at least once every 12 months. In addition to maintenance, there are some further safety precautions to take with LPG heaters:
- be aware that cabinet heaters need a good supply of fresh air to burn properly so the room must be well ventilated
- ensure any heaters have an atmospheric sensing device- it will shut the appliance off if the air quality is poor
- ensure that the correct size and type of gas bottle is being used
- be aware that outdoor heaters and not designed for use indoors
Any appliances that are deemed to be the responsibility of the tenant by the lease must be managed sufficiently and inspected / serviced annually with the appropriate documents kept readily available for inspection as required.
Only a Gas Safe registered engineer can legally carry out gas work, including installation, maintenance and servicing. Prior to them starting work they should be requested to produce their photo ID card. Every engineer should carry one, it shows their unique licence number, and the type of gas work they are qualified to carry out. Gas Safe registered engineers are professionals and will be happy to show their ID card to you. You can also make sure that your engineer is qualified to work on your appliance by calling 0800 408 5500.
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 health and safety issues. Where these are passed onto the tenant the terms of the lease should be clearly stated so that no residual liability falls on the landlord.