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Safety Considerations: Premises Closure

  • United Kingdom
  • Health and safety
  • Litigation and dispute management

07-04-2020

Overview for owners and occupiers

1. Introduction

1.1. In the current climate many businesses are faced with the difficult decision as to whether they can continue with their operations at this unprecedented time; none more so than those who operate within the retail sector. 2020 has already been a challenging year for the retail sector with many well-known retailers closing their stores and reverting to online sales. The Centre for Retail Research has estimated that 20,622 stores will close and job losses will rise to 235,704 by the end of this year. The Government advice to the British public to stay at home will cut the annual revenues of many businesses by more than 20%.[1]

1.2. Many retailers are scaling back their high street operations to online sales resulting in the closure of a number of premises on the high street, retail parks and shopping centres. In many cases businesses have adopted this as an interim measure however, for some businesses they have been left with no alternative but to simply “shut up shop”.

2. Executive Summary

2.1 Organisations who finds themselves closing premises or streamlining operations at their sites must ensure systems and procedures are in place to manage any risks to health and safety.

2.2 Whilst operations may have ceased or been subject to significant reduction,whereby there is only partial use of a premises, as owner and occupier of the site an organisation has to continue to manage the risks associated with the premises until such premises are sold or the liability passes to another entity.

2.3 This advice note outlines the practical considerations an organisation should have regard to including risk assessment factors and recommended check lists.

Premises management – The Law

3. Health and Safety at Work etc Act 1974 (“HSWA”)

3.1 Employers have a duty to ensure so far as reasonably practicable the “health,safety and welfare at work of all its employees”2 and “persons not in its employment who may be exposed to risks to their health and safety.”[3]

3.2 Additionally, organisations who have control of a premises are required “to take such measures as it 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, is or are safe and without risks to health.”[4] The ambit of section 4 HSWA 1974 is far wider than the general duties in sections 2 and 3 HSWA 1974 as it falls on anyone who is in control of non-domestic premises; thus organisations from multi-national corporations to the village shop are brought under the umbrella of this section. The definition of control has been interpreted widely.

4. The Workplace (Health and Safety and Welfare) Regulations 1992 (“WHSWR”)

4.1 These regulations outline additional factors in relation to premises management and ensuring so far as reasonably practicable any workplace is safe and without risks to health; “Every employer shall ensure that every workplace, modification, extension or conversion which is under his control and where any of his employees works complies with any requirement of these Regulations.”[5] These regulations relate to access/egress, lighting, doors, windows, flooring, falling objects etc. and therefore mirrors the duties set out in section 4 HSWA 1974.

5. The Occupiers’ Liability Act 1957 (“OLA”)

5.1 The Occupiers’ Liability Act 1957 (“OLA”) governs the liability of occupiers to visitors on a premises. OLA applies wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully to the premises (we will address the risk of trespassers, who are not included under this act below).

6. Practical considerations

6.1 Empty premises can present a significant hazard if they are not properly controlled and managed. Whilst operations may have ceased at a premises the owner or occupier has, as set out above, legal duties to comply with to ensure the premises remain safe and secure. An organisation is reminded that simply locking up and walking away is not an option, and by doing so it could be at risk of a prosecution in the event an incident occurs.

6.2 Organisations are encouraged to approach the closing down of a premises in the same way as it approached the opening and setting up of a premises. If the same considerations are applied an organisation will ensure it has adhered to its legal duties on premises management.

7. Stage 1 – Appoint a dedicated team to undertake the closing operations

7.1 It is recommended that an organisation sets up a dedicated team to manage and coordinate the closing operations. This will ensure effective and robust systems are implemented to ensure the closing operations are completed safely without risk to employees or third parties, and are compliant with the legislative framework.

7.2 A responsible manger should be appointed for each site. It is important to ensure that this individual has the competence, training and skills to undertake this role.It is likely to be the premises manager or a member of an organisation’s health and safety team. If an organisation engages a facilities management company the same competency checks will need to be undertaken.

7.3 An organisation should ensure there is regular communication with the senior management team to ensure effective governance in relation to the closing down operations.

7.4 The senior management team must:-

  • Appoint a responsible manager for each closed site.
  • Where appropriate, notify the enforcing authority that the site has closed.
  • Additionally, notification to the Insurers, Company’s House, HMRC etc. will need to be completed.
  • Ensure a risk assessment is undertaken to close a premises and ensure the premises are routinely inspected.

8. Stage 2 - Risk Assessment

8.1 Regulation 3 of the Management of Health and Safety Regulations 1999 [6] outlines the requirement for an employer to undertake a suitable and sufficient assessment of any risks to health and safety of its employees and those not in its employment which may be effected by its undertaking.

8.2 For each closed site that he/she has responsibility for, the responsible manager should:

  • Carry out a risk assessment on the premises. This will be site specific and include information on location:-whether the premises fall within a complex, standalone etc
  • Determine an appropriate interval for premises inspections (if deemed necessary).
  • Carry out premises inspections and prepare appropriate reports (if deemed necessary).
  • Ensure that the risk assessment is updated as necessary.
  • Ensure measures are in place to minimise trespass by being proactive in the local community.
  • Ensure that any further controls identified as necessary are implemented or brought to the attention of the responsible director for a decision on implementation.

8.3 In some instances an organisation may seek to partially close its premises or undertake its closing operations in phases. In these circumstances additional risk assessments will need to be undertaken to assess temporary access to the site with consideration of lone working risks, first aid provisions, fire safety etc.

8.4 These assessments should be subject to regular review to ensure this new method of working is safe and without risks. In our experience the risk of incidents occurring is increased when a new system is introduced to site or operations vary from standard practice. For these reasons it is important that alongside the introduction of any such risk assessment that a comprehensive training programme is also provided. This should be monitored and reviewed by individuals who are supervising/ overseeing the remaining operations at the premises.

9. What should be considered in a closed site risk assessment?

9.1 Items to consider as part of a risk assessment:

  • The presence of water (legionella risks);
  • Removal of any flammable materials;
  • Routine electrical testing to reduce the risk of electrical fires;
  • Removal of stock from the premises;
  • The condition of fencing gates and signs;
  • The proximity of schools or housing estates and the history of trespass;
  • Vehicle accessibility – especially in relation to the ambulance, police and fire services; and
  • The inspection frequency (if deemed necessary) – This may be greater during school and summer holidays, depending on the location of the premises.

9.2 In consideration of the above factors this may also give rise to a review of fire safety measures at the premises. We recommend a review of the premises fire risk assessment is undertaken.[7]

9.3 In multi-occupied premises or shared sites additional measures will need to be undertaken to ensure proper cooperation and coordination with neighbouring organisations. If other businesses will continue to operate adjacent to closed premises it is important to ensure communication of any risk assessments with these organisations as additional control measures in relation to access and egress, security and fire safety measures may be required.

9.4 If a contractor is engaged to assist in the dismantling of equipment and fixtures at a premises the usual on-boarding process should be adhered to. This will include a review of relevant competencies and consideration of risk assessments and method statements. Additionally, information will need to be provided to the contractor in relation to access to the premises and any other hazards which may affect their work activities. It may also be necessary to oversee and supervise these works and so appropriate arrangements to undertake this will also need to be considered.

10. Stage 3 - Closed premises inspection checklist

10.1 Once the risk assessment has been completed and control measures implemented it is recommended that the following considerations should be reviewed as part of the premises closure procedure.

  • The condition of gates and fences;
  • The condition of notices and signage;
  • The condition of any buildings or structures;
  • Any evidence of public access;
  • The need for any control measures - this may include the installation of CCTV equipment or engagement of a security firm to undertake routine surveillance;
  • The proposed date for the next inspection; and
  • Contact information of key personnel to be circulated in the event an issue or incident arises.

10.2 We recommend that any reports are signed and countersigned by the senior management team to ensure they have visibility of the closing procedures.

10.3 It is dependent on the risks identified in the risk assessments for the premises, however, it is likely that routine inspections may be required. If this is the case it is important these inspections are adhered to and a standard checklist is completed in conjunction with a review of the risk assessment to ensure the premises remain safe and that if additional control measures are required these are implemented as soon as practicable.

11. Conclusion

11.1 An organisation’s duties under premises management do not cease when the business stops trading, reduces its operations on site or closes the premises. In accordance with the legal framework an organisation is liable both in criminal and civil law if it fails to adequately manage its premises.

11.2 In following these assessments and checklists an organisation will have regard to the practical considerations when closing a premises to ensure compliance with its health and safety obligations. The implementation of such measures will reduce the risk of any incidents arising involving employees or third parties.

11.3 Whilst in the current climate local authority environmental health teams are unlikely to undertake any routine inspections if a serious incident arises at the premises it will be considered a priority and an investigation and subsequent prosecution is likely to follow, albeit subject to considerable delays in view of the pandemic.

[1] https://www.retailresearch.org/retail-crisis.html

[2] Section 2(1) HSWA 1974 http://www.legislation.gov.uk/ukpga/1974/37/section/2

[3] Section 3(1) HSWA 1974 http://www.legislation.gov.uk/ukpga/1974/37/section/3

[4] Section 4(2) HSWA 1974 http://www.legislation.gov.uk/ukpga/1974/37/section/4

[5] Regulation 4 WHSWR 1992 http://www.legislation.gov.uk/uksi/1992/3004/regulation/4/made

[6] Regulation 3(1) http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made

[7] Article 9 – Regulatory Reform (Fire Safety) Order 20005 http://www.legislation.gov.uk/uksi/2005/1541/article/9/made