Over 600 prosecutions have taken place since the Regulatory (Fire Safety) Order 2005 (The FSO) came into force in 2006. The Order dictates that where premises exist as a workplace, the Employer is usually the person, or organisation with responsibilities for fire safety. Every employer should be mindful of their fire risk management responsibilities, but here are 10 situations which employers may not be aware of:
Employers can still be liable in law for any wrongful acts of their employees under the fire safety order.
An employer may believe that the very best fire safety policies and procedures are in place. Staff may have been well trained and provided with all the necessary information as to what to do in the event of a fire. But if a staff member puts the lives of others at risk, even if he has not done what he was told or trained to do, the employer can still be liable.
Article 32 (11) states “nothing in this order operates so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions (contained in the Fire Safety Order) by reason of any act or default of-an employee of his;” hence, an employer is ultimately responsible for the actions of his staff, if they do not follow the appropriate procedures.
There is no due diligence defence available to employers where the Fire Safety Order has been breached in the workplace.
Employers are under a duty to ensure that general fire precautions are in place to provide for the safety of any employees or relevant persons who are not employees, in the workplace. In normal circumstances it would be a defence to a person charged with an offence under the FSO to show that they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence. But Article 33 specifically states that this defence is not available to employers where general fire precautions have not been maintained.
Directors and managers can be liable personally for the actions of their company if offences were committed with their consent, connivance or neglect.
A company is a distinct legal entity and can be prosecuted as such. However, where a company has committed an offence under the FSO and there is evidence to suggest that the acts or omissions of a director/manager have clearly contributed to the committing of the offence, then the individual director/manager can also be liable personally. Whereas a company can only be fined, an individual manager/director could receive a prison sentence of up to 2 years for each offence.
Employers may still breach fire safety legislation, even if they are not in control of the workplace
Article 3 of the FSO states that an employer can be culpable as a “responsible person” if “the workplace is to any extent under his control;” many employers, such as cleaning companies, carers or other subcontractors are not in control of their workplace, but it could be argued that they still have a duty under Articles 19 and 21 to provide fire safety management to employees and to ensure that employees are provided with adequate fire safety training. These Articles may apply even where the employer does not have control of the workplace, as the employer should have control over his employees.
It is up to an employer to make sure that the people he employs to control fire safety measures are competent.
It is not enough to simply appoint other fire safety specialists to carry out fire alarm maintenance and fire risk assessments etc. Article 18 requires the responsible person to ensure that those undertaking preventative and protective measures on behalf of employers must be competent. This may require a due diligence type exercise in ensuring that those instructed to carry out fire safety management responsibilities have sufficient qualifications, knowledge and experience to carry out the required tasks. Failure to do so would lead to a breach of Article 18.
All employers should have a fire safety policy, which identifies a person responsible for fire safety at board or management level.
The government has provided numerous sets of guidance for differing types of premises. All of those guidance documents state that organisations should devise their own fire safety policy to cover things such as the appointment of someone at board level who is responsible for the fire safety throughout the organisation; identifying each person responsible for fire safety at each set of premises the organisation is responsible for; and arrangements to check that the individual persons responsible for fire safety are meeting the requirements of the FSO. Failure to comply with this aspect of the order may result in an offence being committed under Article 11.
An employer is responsible for the training of his staff in respect of fire safety measures and must provide all relevant fire safety information to its employees.
Articles 19 and 21 of the FSO are clear in this respect. Not only should staff be appropriately trained and informed, but records should also be kept to evidence compliance and to show the extent of the training. Again, failure to comply may lead to an offence being committed.
An employer may commit an offence if he fails to provide information requested by the fire service
The FSO provides Inspecting fire officers with a number of investigative powers. These powers allow inspecting officers to inspect premises to ascertain compliance with the FSO; to ascertain the identity of person responsible for fire safety in respect of premises; require production of documentation to ensure policies and procedures are being followed and to require persons with fire risk management responsibilities to facilitate and assist an officer to exercise his powers under the FSO. Article 32 (2) (c) and (e) provides that it is an offence for a person to obstruct or fail to assist and Inspecting Officer in the exercise of those powers.
An employer is ultimately responsible to ensure that a fire risk assessment is suitable and sufficient, even if you pay someone else to do it.
Article 9 requires that fire risk assessments should be suitable and sufficient for the premises in question. Article 18 does not apply to the instruction of fire risk assessors and there is no universally recognised qualification or accreditation needed for a person to become a fire risk assessor. Ultimate responsibility for the suitability and sufficiency of a fire risk assessment rests with the employer.
An employer must cooperate with other employers if premises are shared in relation to fire safety management.
Employers may share facilities and premises with other employers or organisations. In this situation, all those responsible for fire risk management must cooperate and coordinate with each other to ensure that the entirety of the premises are safe in the event of fire. Failure to co-operate and coordinate may lead to an offence being committed under Article 22.