Responsibilities for Fire Management Plan/Strategy

[kurnal]

No Tom with respect you are reading the Directive the wrong way round. An Employer is always responsible for the Health safety and welfare of his employees and cannot delegate that responsibility to anyone else or hide behind anyone else. If an employee is at risk in connection with their employment the Employer is responsible. Others may be too but the Employer will always be.

If he employs a fire risk assessor who he judges to be competent and the risk assessor fouls up both will be in the dock. The risk assessor for not giving competent advice, and the employer for not ensuring the safety of his employees.
Vicarious liability. Theres lots of case law on it.

[Tom Sutton]

I fully agree with you Kurnal but in my opinion that's where Art 33 comes in. The RP says to the man in a funny wig "I have done everything in my power to prevent the commissioning of an offence and this guy next to me is the one to blame not me". But he cannot say it was that stupid fire marshal I appointed or any of his/her other employees.

[kurnal]

Tom may I refer to paragraph 153 on page 31 of the guidance note number 1: enforcement published by the DCLG.

In respect of article 33-defence, paragraph 153 reads as follows:
"the defence of due diligence does not, however, apply where the responsible person is alleged to have failed to have taken such general fire precautions as will ensure the safety of his employees, or to have failed to eliminate or reduce the risk from a dangerous substance present on the premises. Nor does the defence applied to an employer where failure to comply with the provisions of the order is due to enact or default of his employees or appointed competent persons."

So if his employees were placed at risk he cannot say "the guy next to me is the one to blame, not me".

I agree with your second point with regard to the stupid fire Marshall he appointed.

 

[Tom Sutton]

Tom may I refer to paragraph 153 on page 31 of the guidance note number 1: enforcement published by the DCLG.

I fully agree with paragraph 153 and have no arguments with it. My point is, if the guy standing next to the RP in the dock is a person having control as detailed in 5(3) or 5(4) (PHC) then the RP can say "the guy next to me is the one to blame, not me". S/he is not the RP's employee or appointed competent person and providing Articles 8(1)(a) or 12 were not involved I would consider them the person responsible.

 It might be that A could also be held to account as a responsible person to the extent that they have control but irrespective of that B and C certainly would have their collars felt.

I fully agree with the above statement but add B & C would have the benefit of art 33 because A is not their employee or competent person and providing Articles 8(1)(a) or 12 were not involved s/he is responsible.

As the most likely article would be 17 then that shouldn’t be a problem and my only concern would be what’s in the lease.

[kurnal]

I fully agree with the above statement but add B & C would have the benefit of art 33 because A is not their employee or competent person and providing Articles 8(1)(a) or 12 were not involved s/he is responsible.

Meaning of “responsible person”
3.  In this Order “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 control in connection with the carrying on by that person of a trade, business or other undertaking..


Duties under this Order
5.—(1) Where the premises are a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises.

(2) Where the premises are not a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises, so far as the requirements relate to matters within his control.

(3) Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person referred to in paragraphs (1) and (2), who has, to any extent, control of those premises so far as the requirements relate to matters within his control.

(4) 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 purposes of paragraph (3), as being a person who has control of the premises to the extent that his obligation so extends.

Tom sorry to labour this point but it would be good to know which of us is right. Note the subtle difference in the wording of article 3(a) "If the workplace is to any extent under his control" and article 5.4(b) "a person who has control of the premises to the extent that his obligation so extends."

The effect of this is that if as a result of some act or omission by A, if any of B or Cs employees are placed at risk, then the employers B and C are primarily liable as they are Responsible Persons as well as A, who is a person having control.

In such a case, if charged with an offence,  B and C cannot take advantage of the defence in article 33 because their employees have been placed at risk as a result of their employment. They have a duty to provide a safe workplace and if their employees are placed at risk by the acts or omissions of a third party the employer will  have failed in their duty to provide a safe workplace.  

The bottom line though, as pointed out by Colin last time we discussed this, is that having carried out an investigation into an alleged breach, the Fire Authority   may  decide not to bring charges against B or C but may feel that A should  be charged.

As pointed out by Speyside, if B or C are charged and found guilty, the judiciary will have regard to their culpability in awarding a punishment.

That is my understanding of the situation, we need either to agree to differ or perhaps take further opinions on this. But thanks for putting up with me so far.

[Tom Sutton]

That is my understanding of the situation, we need either to agree to differ or perhaps take further opinions on this. But thanks for putting up with me so far.

Agreed kurnal I shall return to my cloud number 9, but before I go, what happen to natural justice. For instance A has failed to maintain an external staircase, B & C have done everything in their power to get him to repair it, however all three are charged, because B & C do not have the defence of due diligence, and all found guilty. Therefore B&C now have a criminal record for something outside their control that's not fair to me and many others I would think.

What Speyside said is mitigating circumstances, and is considered after they have been found guilty however they would still have a criminal record, I also accept a lot rests on the tenancy agreement.

I heard nothing about the RP being prosecuted in the fire alarm engineer case in Manchester.

Am I imitating the knight (John Cleese) in the "Monty Python and the Holy Grail"?

[kurnal]

No Tom. Dont forget the Fire Authority will make a judgement on who they will prosecute for a particular offence. Example. I committed a speeding offence along with 5 other people last week. We all went through a speed trap in excess of 30mph. 2 were prosecuted and will face court, two were given fixed penalties and one was cautioned. I was not even stopped because i was only doing 31. But I broke the Law.

Similarly if B and C can show they have tried to comply then they probably will not be charged or given a caution. 

[Tom Sutton]

Similarly if B and C can show they have tried to comply then they probably will not be charged or given a caution.

So the FA was of the opinion that they have tried to comply in other words shown due diligence and decided not to prosecute. If they hadn't what then.

Back to cloud number 9.