Every month, Bed & Breakfast News magazine features articles on Legal Matters, which affect B&B proprietors. Past issues have covered the following:

Smoke Free UK * Young Workers * Fire Regulations * Employment Equality (Age) Regulations

No Smoking - Your obligations

What do B&B owners need to know about the new 'smoke free' legislation? Whilst the legislation applies to virtually all enclosed premises, such as offices, shops, factories, restaurants and pubs, there are a few premises that will be exempt from the law, subject to strict conditions.

Hotels, boarding houses, guest houses, bed and breakfasts, inns and hostels which have two or more bedrooms set apart for the sleeping accommodation of guests are covered by the new law. However, as a proprietor you have the option of designating one or more bedrooms where the occupants can smoke.

The No Smoking Legislation does not apply to these designated 'smoking' rooms. The designated room should have a ventilation system which does not ventilate into any other part of the no-smoking premises and should be clearly marked as a room in which smoking is permitted. You are not, however, required to designate any rooms for smokers, if you do not wish to do so. Communal areas of your premises will be required to be smoke-free.

Those responsible for smoke-free premises will be required to display 'No Smoking' signs at the premises - for example, at the entrance of the B&B, in a prominent position. Failure to comply with the new law will be a criminal offence, with the penalties and fines set out below:

Smoking in a smoke free premises - £50 fixed penalty, rising to £200 if convicted

Failure to display no-smoking signage - £200 fixed penalty, rising to £1000 if convicted

Failure to prevent smoking in workplace - Maximum fine of £2500 if convicted

As an example of the potential confusion to come, the differences in legislation for each country mean that No Smoking signs in one country, such as premises signs, can be illegal in another, due to their size and content. For example, the Scottish and Welsh main/principal premises signs both have a minimum size of 230mm X 160mm, but the proposal for Welsh signs is that they must be rectangular. This means that a 250mm X 250mm sign will not be legal in Wales, even though it is larger than the minimum size.

In addition, Welsh main/principal signs are the only signs that must be flat, making them diffiuclt to fix to a curved wall or round pillar. Citation plc wrote to the Department of Health in December 2006 when the draft no smoking regulations were published for England, Northern Ireland and Wales, pointing out the various anomalies and consequential burdens businesses could face if they operate businesses in more than one UK country. Unfortunatley, this has been ingnored and individuals face the prospect of penalties for technical infringements such as having the wrong size signs.

Additional information for employers and businesses is currently available on www.smokefreeengland.co.uk and www.smokingbanwales.co.uk and http://www.clearingtheairscotland.com/

© Nigel Lea for Bed & Breakfast News

Young Workers - What you need to know

Across Europe young people are at least 50% more likely to be injured in the workplace than more experienced workers.

The legal definition of a "young person", in health and safety terms, is "any person who has not attained the age of eighteen"; a "child" is anyone who is "not over compulsory school leaving age", i.e. 16 (often referred to as the minimum school leaving age (MSLA)).

Young people, especially those new to the workplace, face unfamiliar risks from the work they will be doing and from their working environment. They are seen to be particularly at risk because of there:

• Inexperience
• Possible lack of awareness of existing and potential risks
• Immaturity

For example, young people may find themselves in the presence of a working kitchen environment with its many hazards like boiling pans etc. Accidents may happen because young people may lack confidence or are eager to impress or please other people around them and are therefore careless or clumsy at first. These situations can lead to accidents, unless proper training and supervision is given.

Before a young person starts work you must, in accordance with the Management of Health and Safety at Work Regulations, carry out a risk assessment, paying particular attention to:

• Layout of the premises
• Any work equipment
• Physical, biological and chemical hazards
• How work is organised
• Rest breaks
• Provision of suitable health & safety training
• Any specific workplace or work activity hazards

In addition, you are obliged to:

• Advise parents/guardians of any children below the compulsory school leaving age of the key findings of the risk assessment and the control measures you have introduced before the child starts work
• Notify your insurance broker

Training and Supervision

Training is important for all staff but is essential for young people when they start working for you. You must be able to demonstrate that adequate training is provided. Training should consider:

• Hazards and associated risks in the premises
• Procedures you have in place to control the those hazards in order to protect their health and safety
• Basic introduction to health and safety in the premises. This should include the location of first aid kits, any fire and evacuation procedures and the location of any chemicals or fluids
• In addition, appropriate supervision will help you get a good idea of their progress and enable you to monitor the effectiveness of any training

These steps will hopefully allow the young worker to blossom and become an efficient and valued member of your team.

© Nigel Lea for Bed & Breakfast News

New Fire Regulations – are you prepared?

New fire safety rules affecting all non-domestic premises in England and Wales came into force on 1 st October 2006. There are a series of guides available to assist those preparing fire risk assessments. More information is available at www.firesafetyguides.communities.gov.uk The Department for Communities and Local Government (DCLG) lists the following points:

1. As part of the Government's commitment to reduce death, injury and damage caused by fire, the Office of the Deputy Prime Minister has reviewed current fire safety law; and is making a number of changes through the Regulatory Reform (Fire Safety) Order (RRFSO).

2. The Regulatory Reform (Fire Safety) Order 2005 was approved by Parliament on 7 June 2005.

3. The main effect of the changes will be a move towards greater emphasis on fire prevention in all non-domestic premises, including the voluntary sector and self-employed people with premises separate from their homes.

4. Fire certificates will be abolished and will cease to have legal status.

5. The Fire Safety Order will apply in England and Wales. Northern Ireland and Scotland will have their own laws.

6. Responsibility for complying with the Fire Safety Order will rest with the 'responsible person'. In a workplace, this is the employer and any other person who may have control of any part of the premises, e.g. the occupier or owner.  In all other premises the person or people in control of the premises will be responsible.

7. If there is more than one responsible person in any type of premises, all must take all reasonable steps to work with each other.

8. If you are the responsible person you will have to carry out a fire risk assessment which must focus on the safety in case of fire of all 'relevant persons'. It should pay particular attention to those at special risk, such as the disabled and those with special needs, and must include consideration of any dangerous substance likely to be on the premises.

9. Your fire risk assessment will help you identify risks that can be removed or reduced and to decide the nature and extent of the general fire precautions you need to take to protect people against the fire risks that remain.

10.  If you employ five or more people you must record the significant findings of the assessment.

11. The new rules are based on the 1997 document “Fire Legislation for the     Future” and were developed with stakeholders from the fire industry, unions,  business interests and others.  A consultation took place in June 2002 with documents being sent out to around 10,000 businesses, government departments, unions, trade bodies and other interested parities.

12. Responsibility for enforcement of the new rules will be with the local fire and rescue service authority who will carry out regular inspections with top priority going to those premises presenting most risk to the community. They are able to do this within the context of the new Integrated Risk Management  Planning (IRMP), part of the Governmentt’s modernisation agenda for the FRS.

13.  For more than 40  years, the fire and rescue service provided cover for fires according to recommended standards. These standards dated back to 1947 and  were based on property types within a given area.

14. Integrated risk management has shifted the focus in planning to put people first, looking at the risks arising from all fires and other emergency incidents, and at the options for reducing and managing them.

15. Before making each change, fire and rescue authorities have undertaken, and will continue to do so, wide consultation with their local communities.  

For more information telephone 020 7944 4400 or see ODPM website: www.odpm.gov.uk

©Bed & Breakfast News September 2006

The above article is just one of the excellent features published every month in Bed & Breakfast News… Subscribe to Bed & Breakfast News now to ensure you receive the latest Legal Matters articles!

It’s an age thing...

By Nigel Lea

Consultation on the Government’s proposed age discrimination legislation ended on 17 October 2005, opening the way for the Government to debate the Employment Equality (Age) Regulations 2006, due to come into force on 1 October this year.

Key elements in the draft regulations, which are not expected to be significantly different in their final form, are:

• All workers and job applicants will be protected against direct and indirect discrimination on age grounds, as well as age motivated harassment and victimisation.
• The provision of benefits based solely on age will be outlawed, although service related benefits will be permitted up to five years' service. Benefits extending beyond five years' service will have to be justified.
• Retirement ages below age 65 will be banned unless they are objectively justified.
• Retirement at or above age 65 will be a fair reason for dismissal but only if the employer follows a ‘planned retirement process’.
• Failure to follow a ‘duty to consider’ process for working beyond retirement age will be unfair.
• The current upper age limit for unfair dismissal and redundancy rights will be removed.

The areas most likely to be modified following the public consultation process are the proposals on service related benefits and on the planned retirement process.

Service related benefits

Service related benefits up to five years’ service will be exempt from the regulations but service related benefits beyond five years’ service will only be lawful if:

• giving the benefit reflects a higher level of experience, rewards loyalty or increases or maintains motivation,
• the employer has concluded that there will be an advantage to the business, and
• the employer applies the length of service criterion similarly to staff in similar situations.

Concluding that there will be an ‘advantage to the business’ may be difficult for an employer to demonstrate at an employment tribunal, which may start from the premise that the benefit is only service related in order to reduce its cost to the business.

How will an employer demonstrate, for example, that employees with 10 years’ experience have a higher level of experience (not just more experience) than a colleague with nine years’ service.

The regulations propose that the employer will be able to define ‘service’ as either the length of service in a post (or in posts carrying out work of a like nature), or the length of time the employee has worked for the employer. However, for both these definitions of service, the length of service will be the total of all continuous and non-continuous service. The employers’ main objection to this definition of service is that ex-employees’ personnel records would need to be retained for a prolonged period ‘just in case’ an ex-employee was subsequently re-engaged and claimed credit for previous service.

Planned retirement process

Although it is proposed that there will be a national default retirement age of 65, dismissal at or above age 65 will only be a fair reason for dismissal where an employer has followed a planned retirement process.

A planned retirement is one where the employer informs the employee in writing not more than 12 months and not less than six months beforehand of the intended date of retirement and tells the employee of the right to request working beyond the date of retirement.

A failure to follow this process will result in an award of compensation of up to eight weeks pay. A failure to follow the process within the prescribed period will still leave an on-going obligation to follow the process up until two weeks before the dismissal. A continuing failure beyond this time will render any subsequent dismissal automatically unfair.

An employee who wishes to continue working must submit a written request to the employer no later than six weeks before the planned retirement date.

It is proposed that the employer will then have a ‘duty to consider’, which will involve:

• holding a meeting with the employee to discuss the request,
• notify the employee of the decision within two weeks of the meeting,
• give the employee two weeks to appeal the employer’s decision.

This planned retirement process will replace the existing statutory dismissal procedure in relation to retirement dismissals.

Employers are objecting to these proposals on the grounds that, even if they tell their employees of their rights at the beginning of (or during) their employment, employers will still have an on-going duty to keep track of employees reaching retirement age and to remind them of these rights at the prescribed time.