Health and Safety (Enforcing Authority) Regulations 1998: Main activity concept
Summary
OG Health and Safety (Enforcing Authority) Regulations (formerly OC124/7), gives detailed and specific guidance on the meaning of the Health and Safety (Enforcing Authority) Regulations 1998. This OG gives guidance on the factors which should be taken into account when considering main activity in individual premises.
Introduction
The Health and Safety (Enforcing Authority) Regulations 1998 (EA Regulations) came into effect on 1 April 1998. The Regulations allocate premises for enforcement by local authorities (LAs) in certain circumstances according to the principle of 'main activity' as enshrined in both the 1977 and 1989 Regulations. This OG gives guidance on the factors which should be taken into account when considering main activity in individual premises. In multi-occupied premises, each occupier is individually assessed and allocated. This prevents the difficulty of trying to assess the overall main activity of premises containing a number of different occupiers.
The guidance below sets out the legal framework for determining main activity and, hence, enforcement responsibility. The EA Regulations also provide, however, for local transfer or assignment. Regulation 5 should be used to reflect pragmatic local working arrangements which arise out of local circumstances. It should not be used as a device for wholesale transfer of premises or types of premises in a way which would normally be provided for by amendments to the EA Regulations. Discussion about transfer and assignment should be through the local enforcement liaison officer (ELO). Further advice is given in OG 'The use of Health and Safety (Enforcing Authority) Regulations 1998: Regulation 5 (transfer) and Regulation 6 (assignments)' (formerly OC 124/8).
Examples of the principles of allocation in specific circumstances are given in the text. OG Health and Safety (Enforcing Authority) Regulations gives further guidance on the interpretation of the Regulations and contains examples of allocation issues.
Background
In determining main activity at individual premises, the primary consideration is the main purpose for which an organisation uses its premises. This is not necessarily the same purpose for which an organisation exists.
In most cases, the main purpose to which a premises is put is clear. The EA Regulations have been designed so that the allocation of most businesses is simple and straightforward. The judgement of main activity is based on common sense and common understanding and usage of terms such as shop, factory, warehouse etc.
Action
HSE and LA inspectors should take the factors detailed in the OG into account when considering main activity in individual premises.
The main activity concept
An example on the application of the main activity concept in a seemingly complex situation is a highly automated chemical plant occupying the same site as its office HQ. The main activity may appear to be that of an office rather than a factory. However, the main purpose is clearly chemical manufacture; the office functions are a support to the main activity on that site despite their apparent mismatch in size. The premise should be allocated to HSE.
A warehouse may be operated by a company whose sole function is the storage of goods. If the majority of goods stored are owned by wholesale distributors who have placed them in the warehouse for that purpose, then the main purpose of the warehouse would be storage for wholesale distribution and would fall to the LA to enforce. This would be so whether or not the occupier of the warehouse plays a part in the distribution process.
Certain livestock premises which fall within the responsibility of HSE may also be open to the public eg the National Stud, where it may be possible that the greatest activity is engaged in dealing with the public rather than the breeding of racehorses. However, the main purpose is clearly horse breeding and, as such, it would remain with HSE in accordance with the exception in Schedule 1, paragraph 11.
While the vast majority of premises can be allocated on this basis, there are certain business activities, and the use to which premises are put, which makes the judgement of main activity considerably more difficult. In these circumstances, inspectors should consider a broader range of factors. These might include, for example, the number of people employed in different activities, their contribution to turnover and allocation of floor space.
However, these factors can be subject to constant change even in premises where, despite these changes, the main activity remains essentially constant. Changes can be brought about by improved business practices, new technology or a review of processes. Similarly, a small number of employees in a peripheral work area within premises could generate more income than a larger number engaged in more substantial work activities. For these reasons, the factors in themselves do not provide a recipe for making lasting judgements about main activity. Consideration of these factors should not, therefore, be applied mechanically or in isolation. Considered in the round, they may inform a judgement about the main purpose of premises and hence its main activity.
Inspectors will also want to consider whether certain activities are subservient to or in support of other activities. The reason why they exist, can give some clue as to what is the main activity and what other activities are in support of that activity. For example:
If cars are prepared on premises for sale on those premises, the main activity is that of car sales and is LA enforced. Where a workshop exists for the repair and maintenance of cars, but as a result of that activity it sells parts and also cars, the main activity is motor vehicle repair and is HSE enforced.
Where a bakery is in the same premises as a shop, and that bakery serves only the shop of which it is part, the main activity is that of a shop and enforcement falls to LAs. The baking is in support of sales regardless of how many are engaged in it or the proportion of the premises it takes up. A bakery with no shop or one which bakes for purposes other than sale in its shop is different. The main activity is then one of baking (manufacture) with the shop being in support of that activity. In these cases, enforcement will fall to HSE. Some modern supermarkets have large in-store bakeries but again the overall main activity will still normally be 'sale of goods' as outlined above.
Most premises hiring DIY tools will also sell equipment to a greater or lesser extent. If the main activity is the sale of goods it will be LA enforced. The hire of DIY equipment could constitute a 'consumer service in a shop' even if there is no sale of equipment. Schedule 1, paragraph 6, makes clear that 'consumer services' to the trade are excluded from those activities where LAs are the enforcing authorities. Plant hire predominantly to the trade will, therefore, fall to HSE.
Temporary change of use
Where the occupier of premises temporarily changes its use, eg an auction of surplus stock on factory premises, the main activity does not change and enforcement remains as determined by the usual main activity. If, however, the occupier of premises allows another person to take over control of part of that premises, albeit for a short period, then the provision of Regulation 3(2) will apply as the premises have effectively become multi-occupied. A circus which sets up in an LA- owned and occupied park or a pop concert on farm land will, therefore, fall to the LA to inspect.
There may be genuine cases where the main activity at a premises fluctuates between allocation to HSE and the LA and it is impossible to establish which is the main activity overall. In these circumstances, an assignment to either the LA or HSE should be made under reg.6. Further advice on the use of Regulation 6 is given in the OG 'The use of Health and Safety (Enforcing Authority) Regulations 1998: Regulation 5 (transfer) and Regulation 6 (assignments)' (formerly OC 124/8). An example of this situation would be a wholesale warehouse where the balance between dangerous substances and non-hazardous storage regularly changes.
Minor occupiers on large sites
Apart from the exception set out in Regulation 4(2), relating to main occupiers in LA, Crown etc. premises, the main activity of any minor occupier in any multi-occupancy premises is assessed and allocated with no regard for the activity of the major occupier. A separately occupied canteen facility in the middle of a factory could, therefore, fall to the LA to enforce as the main activity will be 'catering services'. A judgement will need to be made about the extent to which such premises are genuinely separately occupied. This would normally mean separate egress and access and the canteen being run and operated by contractors rather than employees of the factory. If these conditions are not met, it is arguable that the main activity for the premises as a whole is that of a factory with the catering facilities being a subsidiary activity. Other examples, such as crèches and social clubs should be dealt with according to the above principles.
Peripatetic workers
In premises occupied by others
Tradesmen, cleaners, etc. employed by a separate company will not normally be separately assessed as they will not normally 'occupy' part of the premises. The question of their activity does not, therefore, arise, provided they are not in a category covered by Schedule 2 of the Regulations.
In mobile workplaces (eg mobile vendors)
Where a vehicle-based workplace operates on the highway, stopping at the roadside to sell food, drink or other articles, the vehicle and its pitch become premises to be enforced by LAs (reg.3(3)). Other work activity not specified in Schedule 1 will fall to HSE to enforce.
Regulation 3(2) deals with multi-occupied premises but delivery vehicles present at a workplace will not be separate occupiers and will be enforced by the enforcing authority responsible for the rest of the premises. A floating restaurant which is permanently moored will fall to the LA.
A floating restaurant that cruises on a river while the customers dine is also premises and its main activity is within Schedule 1 so it will fall to LAs to enforce. Floating restaurants moored in estuaries, however, can be outside the boundary of any local authority. Where this is so, they fall to HSE.
Where the worker is mobile
A number of examples exist where the workers themselves are mobile. When these workers are in premises they are the responsibility of the respective enforcing authority. When in transit or carrying on their work activity in the street, they are the responsibility of HSE.
LAs enforcement responsibilities only extend to those premises allocated to them under the Regulations. In practical terms, however, it is recognised that some mobile workers will be covered by the management systems of their base or HQ. A duty holder's responsibility is not discharged if an assessment of risks to employees only extends to when they are in the premises and not when they are at work away from them. It may be sensible in some circumstances where the base or HQ falls to LAs to enforce and the off-site activity is of a type normally dealt with by LAs, to give enforcement advice by local agreement. In all cases, where the enforcing authority of the mobile activity differs from the enforcing authority of the base or HQ, there should be relevant lines of communication between them.
Organisation
None apply