COMPLYING WITH STATUTE

Transcription

1 COMPLYING WITH STATUTE Milton McIntosh Kirkpatrick & Lockhart Nicholson Graham 31 1

2 MILTON McINTOSH Senior Associate, Litigation Department, Kirkpatrick & Lockhart Nicholson Graham Qualified: 1991 (Chartered Surveyor) 1997 (Barrister) 2002 (Solicitor-Advocate) BSc(Hons) Law and Economics Milton McIntosh is a barrister/solicitor-advocate and senior associate in the Property Litigation Team of K&LNG. Milton, who is a chartered surveyor (Healey & Baker and Drivers Jonas) completed his pupillage at top set Falcon Chambers. He joined K&LNG in November He specialises in landlord and tenant disputes, particularly forfeiture, dilapidations, commercial lease renewals, rent reviews and service charge disputes, and real property matters. He is also experienced in arbitrations, property contract disputes and property related trust matters. Milton regularly appears in the LVT and Lands Tribunal. Milton is a member of the Chartered Institute of Arbitrators and the Royal Institution of Chartered Surveyors as well as the Property Litigation Association. He is also a member of the RICS Working Party on Dilapidations. 2

3 COMPLYING WITH STATUTE WHO OWES DUTY? Depending on the scheme of the legislation, obligations may owed by: Occupiers (see: Factories Act 1961; Offices, Shops and Railway Premises Act 1963; Occupiers Liability Act 1957; Occupiers Liability Act 1984; and Workplace (Health, Safety and Welfare) Regulations 1992); Owners (see: Factories Act 1961; Offices, Shops and Railway Premises Act 1963; and Regulatory Reform (Fire Safety) Order 2005); Landlords (see: Defective Premises Act 1972; and Gas Safety (Installation and Use) Regulations 1998); Employers (see: Health and Safety at Work Act 1974; Workplace (Health, Safety and Welfare) Regulations 1992; Disability Discrimination Act 1995; and Regulatory Reform (Fire Safety) Order 2005); Employees (see: Health and Safety at Work Act 1974; and Regulatory Reform (Fire Safety) Order 2005); Persons "in control of premises" (see: Health and Safety at Work Act 1974; Workplace (Health, Safety and Welfare) Regulations 1992; and Regulatory Reform (Fire Safety) Order 2005); Persons undertaking building works (see: Building Regulations 2000); Service providers (see: Disability Discrimination Act 1995). TO WHOM DUTY OWED? Again, depending on the scheme of the legislation, obligations may be owed to, or designed to protect: Employees (see: Factories Act 1961; Offices, Shops and Railway Premises Act 1963; Health and Safety at Work Act 1974; and Workplace (Health, Safety and Welfare) Regulations 1992); Visitors (see: Occupiers Liability Act 1957 ); 3

4 Trespassers (see: Occupiers Liability Act 1984); Disabled persons (see: Disability Discrimination Act 1995); Occupants (see: Gas Safety (Installation and Use) Regulations 1998); Persons "likely to be affected" (see: Defective Premises Act 1972; Health and Safety at Work Act 1974; and Building Regulations 2000); Persons "in or about buildings" (see: Building Regulations 2000); Persons "in the vicinity" (see: Regulatory Reform (Fire Safety) Order 2005); Persons "lawfully on the premises" (see: Regulatory Reform (Fire Safety) Order 2005); Persons "using premises" (see: Health and Safety at Work Act 1974). SANCTIONS/REMEDIES The remedies, if any, that exist for a breach of a statutory obligation depend on the intention of the legislation. Though it is unlikely, the intent may be that in fact there be no legal remedy. Alternatively, the legislation may provide for a criminal remedy or a civil remedy or both. Criminal remedies may include a fine and/or imprisonment. The civil law remedies may be public law ones where a breach may be remediable by judicial review. Alternatively, there may be private law remedies such as where breach constitutes a tortious breach of statutory duty or the tort of negligence. A remedy in contract may also be provided for. Tort of breach of statutory duty The question often arises as to whether it can be inferred from the existence of a statutory duty the existence also of a private right of action in tort. Where the draftsman has stated clearly his intention, one way or the other, no difficulty arises. 4

5 Often, particular with older pieces of legislation, the intention of Parliament has not been stated. In those situations, the relevant legislation has to be considered as a whole, along with the common law environment that existed at the time the legislation came into being. In deciding whether or not a right of action in tort exists, various presumptions have been developed by the Courts: (1) Protection of class: Can it be said that the statute was passed for the protection of a limited class of the public, rather than for the benefit of the public as a whole? If it can, then that is taken as an indication that the intention of Parliament was to provide a civil action. (2) Nature of duty: Is the duty one of a general administrative or regulatory nature imposed on a public authority? If so, liability in tort is unlikely to arise. Similarly, does the duty concern the formulation of policy rather than the carrying out of an obligation or function? If so, again, breach is unlikely to give rise to an action in tort. Does the question of whether a breach of duty was committed depend on the exercise of some person's discretion or judgment? If so, again, the likely remedy will be judicial review rather than damages in tort. (3) Provision by statue of alternative remedies: Does the statute provide for any other remedy? If the statute provides no remedy for its breach and there is an intention to protect a limited class, then it is likely that Parliament intended a civil action since otherwise there would be no method of securing the protection intended. (4) Type of loss: Is the loss of a type not recoverable under the general law of tort? If so, that is a factor that points away from the implication of a civil right of action. (5) Adequate alternative remedies: Does the common law and other statutory law already contain adequate remedies to enforce private rights in the area in question? This is a further indication that no right of civil action was intended. 5

6 (6) Pattern of liability: The Courts, in the absence of clear words, will tend to lean against finding that a right of action at civil law exists where such a right would contradict the general pattern of liability in a particular area or activity but will tend to find one that will support or supplement it. Once it is established that a breach of statutory duty gives rise to liability to a particular class of persons in tort, for an individual to claim, the following must be established: It must be shown that the individual is a member of the protected class; The Defendant must be guilty of a breach of his statutory obligations within its sphere of application; The breach of duty must have caused damage; and The injury must be of a kind that the statute was intended to prevent. FACTORIES ACT 1961 Who owes duty? The 1961 Act seeks to impose obligations on occupies and owners of factories. Section 172 states that: [T]he provisions of this Act shall apply only to factories as defined by this Act, but shall, except where the contrary intention appears, apply to all such factories. Section 175 defines "factories" as: (1) any premises in which, or within the close curtilage or precincts of which, persons are employed in manual labour in any process for or incidental to any of the purposes [listed within this subsection] being premises in which, or within the close curtilage or precincts of which, the work is carried on by way of trade or for purposes of gain and to or over which the employer of the persons employed therein has the right of access or control. 6

7 The section goes on to state that the expression "factories" also includes: (2) [other premises listed within this subsection] in which persons are employed in manual labour (whether or not they are factories by virtue of [section 175(1)]) The list of premises set out in subsection (2) including places such as dry docks, ancillary laundries and print rooms. Where the factory is a "tenement factory", which is defined by sections 176 as: any premises where mechanical power from any prime mover within the close or curtilage of the premises is distributed for use in manufacturing processes to different parts of the same premises occupied by different persons in such manner that those parts constitute in law separate factories then, by section 121(1), the owner rather than the occupier has responsibilities. Section 176(1) of the Act defines "owner" as: the person for the time being receiving the rackrent of the premises would so receive the rackrent if the premises were let at a rackrent... or who What duties owed and to whom? The provisions of the 1961 Act are, of course, primarily aimed at securing the safety and welfare of persons employed in factories. Most of its provisions have been repealed or replaced by more modern legislation. Obligations that survive, however, include the requirement to securely fence hoist doors (section 24) and to properly maintain gas-holders (section 39). Sanctions/Remedies (a) Criminal liability: Section 155(1) of the 1961 Act provides that: In the event of any contravention in or in connection with or in relation to a factory of the provisions of this Act, the occupier, or (if the contravention is one in respect of which the owner is by or under this Act made responsible) the owner, of the factory shall be guilty of an offence. 7

8 A person guilty of an offence is liable to a fine or imprisonment under section 33(3) of the Health and Safety at Work Act (b) Civil liability: Section 155(2) provides that that the creation of a criminal offence under that subsection: shall not be taken as affecting any liability of the occupier or owner in respect of the same matters by virtue of some provision other than the provision or provisions aforesaid. That wording appears simply to preserve whatever liability existed apart from the statutes. However, it is well established that safety legislation such as the 1961 Act enables injured parties to pursue civil remedies. See, for example, Groves v- Wimborne [1898] 2 QB 402. Offices, Shops and Railway Premises Act 1963 Who owes duty? By virtue of section 63 of the 1963 Act, the responsibility is generally placed upon the occupier of premises covered by the Act. As regards premises, section 1 states that: (1) The premises to which this Act applies are office premises, shop premises and railway premises in which persons are employed to work therein. Some of the provisions of the 1963 Act, however, place responsibility on the owner (for example, sections 42 and 43). Section 90(1) of the Act defines "owner" as: the person for the time being receiving the rackrent of the premises would so receive the rackrent if the premises were let at a rackrent... or who What duties are owed and to whom? The provisions of the 1963 Act are, like the 1961 Act, there to secure the health, safety and welfare of persons employed, this time those in shops and offices. 8

9 Many of the provisions of the 1963 Act have been repealed and replaced by provisions under the Health and Safety at Work Act Surviving provisions, however, include the duty imposed on a landlord as owner of a single building which is partly let as an office or shop to ensure that the common parts of the building are kept clean, maintained and sufficiently lit (section 42). Sanctions/Remedies (a) Criminal liability: Section 63 provides that where a person is responsible for a contravention under the Act, he is guilty of an offence. By virtue of section 67: It [is] a defence for a person charged with a contravention of a provision to prove that he used all due diligence to secure compliance with the provision in question. A person guilty of an offence is liable to a fine or imprisonment under section 33(3) of the Health and Safety at Work Act (b) Civil liability: Section 83(1) of the 1963 Act indicates, without expressly saying as much, that a number of its provisions may give rise to a duty in tort. Again, however, it can be said that it is well established that the 1963 Act (being safety legislation) enables injured parties to pursue civil remedies. Occupiers Liability Act 1957 Who owes duty? Section 1 provides that a duty is owed by occupiers of premises. Section 1(2) states that the person to be treated as an occupier is the same as a person who would at common law be treated as an occupier. At common law, the occupier is essentially the person who has control of the premises. 9

10 What duties are owed and to whom? By section 2, an occupier of premises: (1) owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitors by agreement or otherwise. Section 2(2) states that: the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there. By Section 1(3) visitors includes both invitees and licensees. Sanctions/Remedies (a) Criminal liability: No criminal offence is created by the 1957 Act. (b) Civil liability: The stated purpose of the 1957 Act is to amend the law of tort. Thus, the remedy for an injured or aggrieved party is to pursue a civil action for breach of duty under the 1957 Act and to recover damages. Occupiers Liability Act 1984 Who owes duty? As with the 1957 Act, a duty is owed by occupiers of premises. Indeed, section 1(2) of the 1984 Act states that the person who is to be treated as an occupier of any premises is: (a) any person who owes in relation to the premises the duty referred to in section 2 of the [1957 Act] 10

11 What duty is owed and to whom? A duty is owed by the occupier to persons other than visitors, with visitors being defined by reference again to the 1957 Act. Essentially, the duty is owed to trespassers. The duty that is owed is, by virtue of section 1 of the 1984 Act, in respect of any risk of trespassers: (1)(a) suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them That duty arises if: 1(3)(a) [the occupier] is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the [trespasser] is in the vicinity of the danger concerned or that he may come to the vicinity of the danger; and (c) the risk is one which, in all the circumstances of the case, [the occupier] may have reasonably expected to offer the [trespasser] some protection. The duty is to take: 1(4) such care as is reasonable in all the circumstances to see that [the trespasser] does not suffer injury on the premises by reason of the danger concerned. Sanctions/Remedies (a) Criminal liability: No criminal offence is created by the 1984 Act. (b) Civil liability: As with the 1957 Act, the purpose of the 1984 Act is to introduce a statutory duty of care in place of the common law rules and, again, an aggrieved/injured party has a right of civil action for breach of statutory duty and can claim damages. 11

12 Defective Premises Act Section 4 This section was enacted to replace section 4 of the Occupiers Liability Act Hence the reason for considering it at this point. Who owes duty? By Section 4(1) a duty is owed by a landlord: [w]here premises are let on a tenancy which puts on the landlord an obligation to the tenant for maintenance and repair of the premises What duty is owed and to whom? Under section 4(1), the duty is owed to: all persons who might reasonably have been expected to be affected by defects in the state of the premises and is a duty: to take such care as is reasonable in all the circumstances to see that [all such persons] are reasonably safe from personal injury or from damage to their property caused by a relevant defect. The duty is owed if the landlord: 4(2) knows or if he ought in all the circumstances to have known of the relevant defect. A relevant defect means: 4(3) a defect in the state of the premises arising from or continuing because of an act or omission by the landlord which constitutes or would if he had notice of a defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises Sanctions/Remedies (a) Criminal liability: No criminal offence is created by section 4 of the1974 Act. 12

13 (b) Civil liability: The duty under section 4 is not one that is implied into the lease. Persons who reasonably could be expected to be affected by the defect may be parties other than the tenant. Given the history of the section - its replacing of section 4 of the Occupiers Liability Act there appears to be little question that the intention was to create a duty in tort for the breach of which an injured party could seek to recover damages. HEALTH AND SAFETY AT WORK ACT 1974 Who owes duty? Duties are imposed on employers (sections 2 and 3), on self-employed persons in respect of the conduct of their undertakings (section 3), and on other persons: 4(2) who [have], to any extent, control of [non-domestic] premises or of the means of access thereto or egress therefrom or of any plant or substance in such premises And: 4(3) Where a person has by virtue of any contract or tenancy, an obligation of any extent in relation to: (a) the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or (b) the safety of or the absence of risks to health arising from plant or substances in any such premises; that person shall be treated, for the purposes of [section 4(2)] has control of the matters to which his obligation extends. as being a person who A person having control of any premises means: 4(4) a person having control of any premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not). 13

14 Section 53(1) states that: domestic premises means premises occupied as a private dwelling (including any garden, yard, garage, out-house or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling), and non-domestic premises shall be construed accordingly. What duty is owed and to whom? By section 2(1) it is a duty of every employer: to ensure, so far as reasonably practicable, the health, safety and welfare at work of all his employees. The matters to which that duty extends include in particular: 2(2)(a) the provision and maintenance of plant and systems of work that are, so far as reasonably practicable, safe and without risks to health; (b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; (d) so far as is reasonably practicable as regards any place of work under the employers' control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards to facilities and arrangements for their welfare at work. By section 3(1), it is the further duty of every employer: to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affected thereby, are not thereby exposed to risks to their health or safety. 14

15 It is the duty of every self-employed person: 3(2) to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety. It is the duty of a person having control of premises: 4(2) to take such measures as is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, are safe and without risk to health. Section/Remedies (a) Criminal liability: Section 33(1)(a) of the 1974 Act provides that it is an offence for a person to fail to discharge a duty to which he is subject by virtue of sections 2 to 7. Section 33(1A) provides that a person guilty of an offence under section 33(1)(a) consisting of failing to discharge a duty to which he is subject by virtue of section 2 to 6 shall be liable, on summary conviction, to a fine not exceeding 20,000 and, on conviction on indictment, to a fine. (b) Civil liability: Section 47 deals with the question of civil liability under the 1974 Act. It provides that: (1) Nothing in [Part 1 of this Act (sections 1 to 54)] shall be construed: (a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by sections 2 to 7 or any contravention of section 8; or (b) as affecting the extent (if any) to which breach of a duty imposed by any of the existing statutory provisions is actionable Section 47(4) however provides that: Sub-section 47(1)(a) [is] without prejudice to any right of action that exists apart from the provisions of this Act 15

16 It can be seen, therefore, that the 1974 Act confers no right of civil action. Whether there is such a right depends on principles outlined above regarding ascertaining the existence of a right of action in tort for breach of statutory duties where there is no express provision on the matter. It is considered by most academic writers (see for example Woodfall, at paragraph ) that such cause of action does exist. THE WORKPLACE (HEALTH, SAFETY AND WELFARE) REGULATIONS 1992 This set of regulations is one in a long list of regulations made under section 15 of the Health and Safety at Work Act 1974 but is probably one of the most important sets. Who owes duty? Regulation 4 impose duties on employers and on every person: 4(2) who has, to any extent, control of a workplace, modification, extension or conversion Regulation 2 defines "workplace" as: 2(1) any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes: (a) any place within the premises to which such person has access while at work; and (b) any room, lobby, corridor, stairs, staircase, road or other place used as a means of access to or egress from that place of work or with facilities are provided for use in connection with the place of work other than a public road Duties are also imposed by regulation 4(5) on every person: who is deemed to be the occupier of a factory by virtue of section 175(5) of the Factories Act

17 What duties owed and to whom? The duties owed by employers and people in control of workplaces are not expressly owed to any particular person, though, of course, the intended beneficiaries of the regulations are employees. Rather, the duties specify that certain requirements must be met by the dutyholders in respect of the workplaces they control. Regulation 4(1) provides that every employer: shall ensure that every workplace, modification, extension or conversion that is under his control and where any of his employees works complies with any requirements of [the] Regulations which: (a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion; and (b) is in force in respect of the workplace, modification, extension or conversion. Regulation 4(2) similarly provides that every person who has, to any extent, control of the workplace, modification, extension or conversion: shall ensure that such workplace, modification, extension or conversion complies with any requirements of these Regulations which: (a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion; (b) is in force in respect of the workplace, modification, extension or conversion; and (c) relates to mattes within that person's control. Regulation 4(5) provides that any person who is deemed to be the occupier of a factory: shall ensure that the premises which are so deemed to be a factory comply with these Regulations. 17

18 Regulations 5 to 25 set out a long list of requirements with regards workplaces which includes the following: Maintenance Ventilation of enclosed workplaces Temperature indoors and the provision of thermometers Lighting (including emergency lighting) Cleanliness and waste materials Room dimensions and space Work stations and seating Condition of floors and traffic routes Protection from falls or falling objects Windows and transparent or translucent doors, gates and walls Windows, skylights and ventilators Ability to clean windows and skylights safely Organisation of traffic routes Construction of gates and doors Escalators and moving walkways Sanitary conveniences Washing facilities Drinking water Accommodation for clothing Facilities for changing clothing 18

19 Facilities for rest and meals Sanctions/Remedies (a) Criminal liability: Section 33(1)(c) of the 1974 Act provides that it is an offence for persons to contravene any health and safety regulations or any requirement or prohibition imposed under any such regulations. The 1992 Regulations are, of course, such regulations. Section 33(3) provides that a person guilty of an offence under section 33(1)(c) shall be liable, on summary conviction, to a fine not exceeding 5,000 and, on conviction on indictment, to a fine or, depending on the circumstances, to imprisonment for a term not exceeding 2 years or both. (b) Civil liability: By section 47(2) of the 1974 Act, breach of a duty imposed by health and safety regulations, so far as it causes damages, is actionable except in so far as the regulations provide otherwise. The 1992 Regulations do not provide otherwise and therefore their breach may be actionable. BUILDING REGULATIONS 2000 The 2000 Regulations arise out of the provisions of the Building Act 1984, principally Section 1. Who owes duty? The 2000 Regulations do not impose an express duty on any particular person or class of person but seek to regulate certain activities being carried on at premises. Thus, any person carrying out the regulated activities will be subject to the duties. Broadly, the regulated activities are building works (regulation 4) and material change of use of building (regulation 6). Regulation 3(1) provides that building work means: (a) the erection or extension of a building; (b) the provision or extension of a controlled service or fitting in or in connection with the building; 19

20 (c) the material alteration of a building or a controlled service or fitting (d) work required by regulation 6 [of these 2000 Regulations relating to a material change of use]; (e) the installation of insulating material in the cavity wall of a building; (f) work involving the underpinning of building. By Regulation 5, there is a material change of use where: there is a change of the purposes for which or in circumstances in which a building is used, so that after that change; (a) the building is used as a dwelling, where previously it was not; (b) the building contains a flat, where previously it did not; (c) the building is used as a hotel or a boarding house, where previously it was not; (d) the building is used as an institution, where previously it was not; (e) the building is used as a public building, where previously it was not; (f) the building is not a building described in Classes I to IV in Schedule 2 [of these Regulations], where previously it was; or (g) the building, which contains at least one dwelling, contains a greater or lesser number of dwellings than it did previously. What duty is owed and to whom? Duties are not owed to any particular person or class of persons, though section 1(1) of the Building Act 1984 states that the purposes of building regulations may include: (a) securing the health, safety, welfare and convenience of persons in or about the building and of others who may be affected by buildings or matters connected with buildings 20

21 The requirements imposed on those undertaking activities defined by the 2000 Regulations as building work are, by regulation 4(1), that the building work should be carried out so that: (a) it complies with the applicable requirements contained in Schedule 1 [of these Regulations]; and (b) in complying with any such requirement there is no failure to comply with any such other requirement. Further, by regulation 4(2), building work should be carried out so that, after it has been completed: (a) any building which is extended or to which a material alteration is made; or (b) any building in, or in connection with, which a controlled service or fitting is provided, extended or material altered; or (c) any controlled service or fitting, complies with the applicable requirements of Schedule 1 [of these Regulations] or, where it did not comply with any such requirement, is no more unsatisfactory in relation to that requirement than before the work was carried out. As regards activities defined by the 2000 Regulations as representing a material change of use, the requirements which are imposed by regulation 6 are that, where there is a material change of use: 6(1) such work, if any, shall be carried out as is necessary to ensure that the building complies with the applicable requirements of [certain specified paragraphs] of Schedule 1 [to these Regulations] There is a further requirement that building works be carried out: 7(a) with adequate and proper materials which: (i) are appropriate for the circumstances in which they are used (ii) are adequately mixed or prepared, and (iii) are applied, used or fixed so as adequately to perform the function for which they are designed; and 21

22 (b) in a workmanlike manner. Sanctions/Remedies (a) Criminal liability: By section 35 of the Buildings Act 1984, if a person contravenes any provisions contained in the building regulations, they may be liable on summary conviction to a fine not exceeding 5,000 and to a further fine not exceeding 50 for each day on which default continues after he is convicted. (b) Civil liability: Section 38 of the 1984 Act provides that breach of a duty imposed by building regulations, so far as it causes damages, is actionable, except in so far as the regulation provides otherwise. However, this provision has yet to be brought into force. DISABILITY DISCRIMINATION ACT 1995 Who owes a duty? Part II of the 1995 Act (sections 3A to 18D) imposes duties on, and creates offences that can be committed by, employers. Part III of the Act (sections 19 to 28) imposes duties on, and creates offences that can be committed by, providers of services. By section 19(2), the provision of services includes the provision of any goods or facilities, and it is irrelevant whether the service is provided on payment or without payment. Section 19(3) includes the following examples of services to which Part III of the Act apply: (a) access to and use of any place which members of the public are permitted to enter; (b) access to and use of means of communication; (c) access to and use of information services; (d) accommodation in a hotel, boarding house or other similar establishments; (e) facilities by way of banking or insurance or for grants, loans, credit or finance; 22

23 (f) facilities for entertainment, recreation or refreshment; (g) facilities provided by employment agencies or under section 2 of the Employment and Training Act 1973; (h) the services of any profession or trade, or any local or other public authority. What duties are owed and to whom? Obviously, the whole scheme of the 1995 Act is to prevent discrimination against disabled persons. By section 1(1) a person has a disability if he has: a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities. In the field of employment, by section 4, it is unlawful for an employer to discriminate against a disabled person: (1)(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment; (b) in the terms on which he offers that person employment; (c) by refusing to offer, or deliberately not offering, him employment. It is also unlawful for an employer to discriminate against a disabled person whom he employs: 4(2)(a) in the terms of employment which he affords him; (b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefits; (c) by refusing to afford him, or deliberately not affording him, any such opportunities; or (d) by dismissing him, or subjecting him to any other detriment. 23

24 Section 4(A) imposes a positive duty on employers to make adjustments. That section provides that: (1) Where: (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is a duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature having that effect. In relation to the provision of goods, facilities and services, by section 19 it is unlawful for a provider of services to discriminate against a disabled person: (1)(a) in refusing to provide, or deliberately not providing, to the disabled person, any service which he provides, or is prepared to provide, to members of the public; (b) in failing to comply with any duty imposed on him by section 21 [of this Act] in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service; (c) in the standard of service which he provides to the disabled person or the manner in which he provides it to him; or (d) in the terms on which he provides a service to the disabled person. In addition to the offences created by section 19, there is a duty imposed on service providers by section 21. That section provides that: (1) Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect. (2) Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is a duty of 24

25 the provider of that service to take such steps as is reasonable in all the circumstances of the case, for him to have to take in order to: (a) remove the feature; (b) alter it so that it no longer has that effect; (c) provide a reasonable means of avoiding the feature; or (d) provide a reasonable alternative method of making the service in question available to disabled persons. However, section 21(6) provides that: Nothing in [section 21] requires a provider of services to take any steps which would fundamentally alter the nature of the service in question or the nature of his trade, profession or business. Further, section 21(7) provides that: Nothing in [section 21] requires a provider of services to take any steps which would cause him to incur expenditure exceeding [a] prescribed maximum. Sanctions/Remedies (a) Criminal liability: No criminal offences are created by Parts II or III of the 1995 Act. (b) Civil liability: As regards the area of employment, by Section 17A(1) of the 1995 Act, a complaint by any person that another person: (a) has discriminated against him, or subjected him to harassment, in a way that is unlawful under [Part II of this Act], or (b) is, by virtue of section 57 or 58 [of this Act], to be treated as having discriminated against him in such a way, may be presented to an employment tribunal. 25

26 By section 17A(2): Where an employment tribunal finds that a complaint presented to it under [section 17A of this Act] is well-founded, it shall take such of the following steps as it considers just and equitable: (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates; (b) ordering the respondent to pay compensation to the complainant; (c) recommending that the respondent take, within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates. Section 17A(3) provides that: Where a tribunal orders compensation under section 17A(2)(b) [of this Act], the amount of the compensation shall be calculated by applying the principles applicable to the calculation damages claims in tort for breach of statutory duty. Paragraph 2(1) of Schedule 3 to the 1995 Act provides that: Except as provided by Part II [of this Act], no civil or criminal proceedings may be brought against any person in respect of any act merely because the act is unlawful under that Part. As regards the provision of services, section 25(1) of the Act provides that a claim by any person that another person: (a) has discriminated against in a way which is unlawful under [Part III of this Act]; may be made the subject of civil proceedings in the same way as any other claim in tort for breach of statutory duty. Section 25(2) provides that damages in respect of discrimination in a way which is unlawful under Part III may include compensation for injury to feelings whether or not they include compensation under any other head. 26

27 Paragraph 5(1) of Schedule 3 provides that: Except as provided by section 25, no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Part III [of this Act]. REGULATORY REFORM (FIRE SAFETY) ORDER 2005 The operative provisions of this Order were due to come into force on 1 April 2006 but the ODPM has recently indicated that that date is to be pushed back. When they do come into force, they will repeal the Fire Precautions Act Who owes duty? The Order primarily places duties on the responsible person. Article 3 of the Order provides that responsible person means: (a) in relation to a workplace, the employer, if the workplace is to any extent under his control; (b) in relation to any premises not falling within paragraph (a): (i) the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not); or (ii) the owner, where the person in control of the premises does not have a control in connection with the carrying on by that person of a trade, business or other undertaking. Article 5(3) provides that: Any duty imposed by [articles in this Order or regulations made under these articles] on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person who has to any extent, control of those premises so far as the requirements relate to matters within his control. 27

28 Article 5(4) provides that: Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to: (a) the maintenance or repair of any premises, including anything in or on premises; or (b) the safety of any premises, that person is to be treated, for the purpose of [article 5(3)], as being a person who has control of the premises to the extent that his obligation so extends. What duties owed and to whom? The duties imposed by the Order are directed at ensuring the safety of the responsible person s employees and of relevant persons who are not employees of the responsible person. Article 2 defines relevant persons as (a) any person who is or may be lawfully on the premises; and (b) any person in the immediate vicinity of the premises who is at risk from a fire on the premises. Articles 8 to 22 and 38 impose a range of fire safety duties on the responsible person. A basic duty to take general fire precautions is imposed by article 8 which provides that: (1) The responsible person must: (a) take such general fire precautions as will ensure, so far as is reasonable practicable, the safety of any of his employees; and (b) in relation to relevant persons who are not his employees, take such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe. Articles 9 to 22 and 38 impose more specific duties covering: Risk assessment Principles of fire prevention to be applied 28

29 Fire safety arrangements Elimination or reduction of risks from dangerous substances Fire-fighting and fire detection equipment Emergency routes and exits Procedures for serious and imminent danger and for danger areas Maintenance Safety assistance Provision of information to employees and to employers and the self employed from outside undertakings Training Co-operation and co-ordination Maintenance of measures provided for the protection of fire-fighters Employees are also under a duty. By article 23(1)(a) every employee must, while at work: take reasonable care for the safety of himself and of other relevant persons who may be affected by his acts or omissions at work. Sanctions/Remedies (a) Criminal liability: With respect to criminal liability, article 32(1) provides that: It is an offence for any responsible person or any other person mentioned in article 5(3) to: (a) fail to comply with any requirement or prohibition imposed by articles 8 to 22 and 38 where that failure places one or more relevant persons at risk of death or serious injury in case of fire 29

30 By article 32(3): Any person guilty of an offence under [article 32(1)(a)] is liable: (a) on summary conviction to a fine not exceeding the statutory maximum; or (b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding two years, or to both. Article 32(2) provides that: It is an offence for any [employee while at work] to: (a) fail to comply with articles 23 where that failure places one or more relevant persons at risk of death or serious injury in case of fire. By article 32(5): Any person guilty of an offence under [article 32(2)(a)] is liable: (a) on summary conviction to a fine not exceeding the statutory maximum; or (b) on conviction on indictment, to a fine. (b) Civil liability: As regards civil liability, article 39 states that: (1) subject to paragraph (2) [below], nothing in this Order is to be construed as conferring a right of action in any civil proceedings (2) Breach of a duty imposed on an employer by or under this Order, so far as it causes damage to an employee, confers a right of action on that employee in civil proceedings. GAS SAFETY (INSTALLATION AND USE) REGULATIONS 1998 These Regulations, like the Workplace (Health, etc) Regulations 1992, are made under section 15 of the Health and Safety at Work Act

31 Who owes duty? Regulation 36 imposes duties on landlords. In that regulation landlord means: (i) where the relevant premises are occupied under a lease, the person for the time being entitled to the reversion expectant on that lease or, who apart from any statutory tenancy, would be entitled to possession of the premises; and (ii) where the relevant premises are occupied under a licence, the licensor, save that where the licensor is himself a tenant in respect of those premises, it means the person referred to in paragraph (i) above lease means: (a) a lease for a term of less than 7 years; and (b) a tenancy for a periodic term; and (c) any statutory tenancy arising out of a lease or tenancy referred to in sub-paragraph (a) or (b) above and relevant premises means: premises or any part of premises occupied, whether exclusively or not, for residential purposes (such occupation being in consideration of money or money s worth under a lease or a licence What duties owed and to whom? Though the duties of the landlord are not expressly owned to any particular person, the intended beneficiaries of regulation 36 are the occupants of relevant premises. This can be seen from the general duty contained in paragraph 36(2) which provides that: Every landlord shall ensure that there is maintained in a safe condition: (a) any relevant gas fitting; and (b) any flue which serves any relevant gas fitting, so as to prevent the risk of injury to any person in lawful occupation of relevant premises. 31

32 Paragraphs 36(3) to (12) contain more specific duties covering: Safety checks Record keeping of safety checks Qualifications of persons carrying out safety checks Provision and availability of records of safety checks Type of gas installation Sanctions/Remedies (a) Criminal liability: The position is similar, but not identical, to that with respect to the Workplace (Health, Safety and Welfare) Regulations As noted before, section 33(1)(c) of the 1974 Act provides that it is an offence for a person to contravene any health and safety regulations or any requirement or prohibition imposed under any such regulations. The 1998 Regulations are covered by this section. The 1998 Regulations provide at regulation 39, however, that no person shall be guilty of an offence by reason of contravention of regulation 36 in any case in which he can show that he took all reasonable steps to prevent that contravention. Section 33(3) of the 1974 Act provides that a person guilty of an offence under section 33(1)(c) shall be liable, on summary conviction, to a fine not exceeding 5,000 and, on conviction on indictment, to a fine or, depending on the circumstances, to imprisonment for a term not exceeding 2 years or both. (b) Civil liability: As noted before, by section 47(2) of the 1974 Act, breach of a duty imposed by health and safety regulations, so far as it causes damages, is actionable except in so far as the regulations provide otherwise. Like the 1992 Regulations, the 1998 Regulations do not provide otherwise and therefore their breach may be actionable. 32

33 EXPRESS LEASE OBLIGATIONS A standard modern day commercial lease will typically impose an obligation on the tenant along the following lines: "Statutory obligations (a) At the Tenant's own expense to execute all works and provide and maintain all arrangements upon or in respect of the Premises or the use to which the Premises are being put that are required in order to comply with the requirements of any statute (already or in the future to be passed) or any government department, local authority, other public or competent authority or court of competent jurisdiction regardless of whether such requirements are imposed on the Landlord, the Tenant or the occupier. (b) Not to do in or near the Premises any act or thing by reason of which the Landlord may (whether by statute or otherwise) incur, have imposed on it or become liable to pay any penalty, damages, compensation, costs, charges or expenses. (c) Without prejudice to the generality of the above, to comply in all respects with the provision of any statutes or any other obligations imposed by law or by any bye-laws applicable to the Premises or in regard to carrying on the trade or business for the time being carried on at the Premises." MODIFICATION OF LEASE COVENANTS Both the Factories Act 1961 and the Offices, Shops and Railway Premises Act 1963 contain powers for the county court to modify covenants which prevent alterations from being carried out where the alterations are required in order to comply with statute. Section 169 of the 1961 Act provides that: "If by reason of an agreement between the owner and the occupier of premises the whole or any part of which has been let as a factory the owner or occupier is prevented from carrying out any structural or other alterations in the Premises which are necessary to enable him to comply with the provisions of this Act or of any regulation or order made under this Act or in order to conform with any standard or requirement imposed by or under this Act, he may apply to the county court and the court after hearing the parties and any witnesses whom they desire to call, may make such an order setting aside or modifying the terms of the agreement as the court considers just and equitable in the circumstances of the case." 33

34 Section 73 of the 1963 Act contains similar provisions. The Disability Discrimination Act 1995 actually modifies lease covenants in certain circumstances. Under section 18A, modification occurs where: " (a) a person to whom a duty to make reasonable adjustment applies ("the occupier") occupies under a lease; (b) but for this section, the occupier would not be entitled to make a particular alteration to the premises; and (c) the alteration is one which the occupier proposes to make in order to comply with that duty." In such circumstances, by section 18A(2) the lease has effect as if it provided: " (a) for the occupier to be entitled to make the alteration with the written consent of the lessor; (b) for the occupier to have to make a written application to the lessor for consent if he wishes to make the alteration; (c) if such an application is made, for the lessor not to withhold his consent unreasonably; and (d) for the lessor to be entitled to make his consent subject to reasonable conditions." Section 27 of the 1995 Act sets out similar provisions in respect of alterations proposed by service providers to comply with their duties under the Act. Further detailed regulations on alterations are set out in the Disability Discrimination (Employment Field) (Leasehold Premises) Regulations 2004 and the Disability Discrimination (Providers of Services) (Adjustment of Premises) Regulations