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THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: John Webb on March 05, 2008, 09:25:09 PM
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A national business operates through a number of regional offices. These offices have in their power the appointment of a manager and sometimes an assistant manager for each local business unit, but the appointed manager then operates each such unit effectively as a 'franchise' and can separately employ others to assist them.
Following the introduction of the RR(FS)O, the local business unit manager carries out, or arranges for someone to carry out, the FRA. The regional office is sent a copy of the FRA to show it has been done. If the regional office then comments on the FRA to the manger who sent it (or even just looks at it), do they take on any legal responsibility for that FRA? Or is it legally still down to the local manager as the 'RP' to decide what needs to be done?
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John there are people with responsibilities and there are "responsible persons"
The RP is defined in the order. Basicly its the employer unless there isnt one or where they have no control of the premises.
Managers and staff etc all have different responsibilities. This doesnt make them the RP.
The Order is designed to allow enforcers to prosecute whoever they think is culpable for an offence . so it really doesnt matter to anybody but a lawyer.
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I totally agree with Wee Brian except for the last sentence. It matters a hell of a lot when serving notices.
As he correctly points out duty is placed on responsible person and any other person who as to any extent control.
So notices can be served on the RP or a manger etc., and by virtue of article 32(10) any one at all can be charged with an offence, even if they have no control.
If a FRS serve on the manager a notice as the responsible person, and he appeals, and at the appeal it is found that in law he is not the responsible person but a person who has control, the appeal is likely to be won.
This could result in substantial costs being awarded against the FRS.
So it is very very important that inspecting officers, fire safety managers, brigade managers etc. understand this ......oh yes and the odd anorak wearer may be interested.
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A simple question- let me see if I can complicate matters. This is only my opinion for what its worth.
I believe the National Organisation may be the "Responsible Person" if they employ the area manager and sometimes an assistant. Someone once said "if it looks like a duck and quacks it probably is a duck".
If however the area manager is operating as a franchise this usually means that they purchase the rights to market the brand in their own right trading as a stand alone business. If this is the case the area manager may well be self employed or a director of his own company operating the franchise. In such a case the Owner of the building will not have any dutuies under the Fire Safety Order unless there are multiple occupiers.
Even if there is a single occupier it may be a condition of the frachise agreement or a condition of the lease of the building for insurance purposes that the occupier should furnish the landlord with evidence of compliance with his legal duties but this does not confer any responsibility of legal compliance on the owner under the Fire Safety Order.
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Spot on Kurnal, if the manager is employed he is not the RP, even if he does do some hiring and firing himself, because he is doing that on behalf of the organisation. If he has bought the franchise and has sole control of the business he is the RP...in my opinion...or he may be a duck as you correctly point out.
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Bear in mind Regulation 22, "where two or more responsible persons share, or have duties in respect of, premises etc.".
Ok this was put into place to deal with multioccupied premises, but it could be applied to this circumstance and both the manager/franchise owner and the national office could be regarded as the Responsible Person.
Book em both Dano and let the courts sort it!
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Bear in mind Regulation 22, "where two or more responsible persons share, or have duties in respect of, premises etc.".
Ok this was put into place to deal with multioccupied premises, but it could be applied to this circumstance and both the manager/franchise owner and the national office could be regarded as the Responsible Person.
Book em both Dano and let the courts sort it!
Yes I agree. There is a certain process of elimination to follow.
Lets imagine the organisation has rigid and well prepared policies and procedures regarding fire safety in all of its stores and franchises..
Lets also say the manager and area manager have received excellent fire safety training (ok im bounding into the realms of fantasy now)
Lets then say the area manager visits the local franchise and points out numerous fire safety failings to the manager (blocked fire exits for example) and asks the manager to remedy the problem.
The area managers returns a few days later only to find the manager hasn't done anything about the blocked exits, and as a result the manager is given a written warning.
The area manager leaves the store having ensured the exits are unblocked but come the next week the manager has lapsed into his old ways and has allowed exits to get blocked and a fire occurs and people are put at risk and are barely able to escape.
Who is responsible now?
My thought for the day is "if it "quacks and looks like a duck it is probably a duck" but " If your auntie looks like your auntie but has testicles she's probably your uncle".
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The RP is the employer - but if it was me I would nick the manager cos hes a bad un.
As I say he had responsibilities but he aint the Responsible person.
I like crispy duck in those little pancakes.
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Lets imagine the organisation has rigid and well prepared policies and procedures regarding fire safety in all of its stores and franchises..
Lets also say the manager and area manager have received excellent fire safety training (ok im bounding into the realms of fantasy now)
Lets then say the area manager visits the local franchise and points out numerous fire safety failings to the manager (blocked fire exits for example) and asks the manager to remedy the problem.
The area managers returns a few days later only to find the manager hasn't done anything about the blocked exits, and as a result the manager is given a written warning.
The area manager leaves the store having ensured the exits are unblocked but come the next week the manager has lapsed into his old ways and has allowed exits to get blocked and a fire occurs and people are put at risk and are barely able to escape.
Who is responsible now?
The responsible person never changes and the employer has an absolute duty to ensure the safety of their employees so the organisation may be committing an offence if they fail in that duty.
However in the situation you describe the RP has a defence of due dilligence, and a comptent enforcer would look further down the chain and I would hope prosecute the manager using article 32(1)a....Quack Quack!!
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I'll get a jar of the Hoi Sin sauce!
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Thanks for your comments. The local managers are all self-employed. Ther premises are owned by the regional offices, I think, but am not certain. For various reasons the company concerned has not seen fit to issue a standard set of fire safety rules but have left it entirely to the local managers to organise their own compliance with the legislation in the light of local circumstances. The regional offices like to know that the local managers have done what they ought to do, but have apparently been told that if they actually read the copy of the FRA they've been sent they could find themselves in court with the managers whether they commented back to the manager any deficits they note or not!
This seemed to me, when I heard about it, to be either wrong legal advice or a possible misinterpretation of it. I would have thought that reading the FRAs as they are received could show up common problems concerning this business meeting the legislative requirements, possibly save people from reinventing wheels etc., and therefore was to be encouraged.
And it would seem from the comments above that in any case they could well be hauled into court regardless if they have commented on the FRA or not even read it. I can imagine the court's reaction to the latter admission!
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continuing the duck analogy- if she looks like the Mother in Law and Sounds like the Mother in Law she's probably your Wife.
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John - leaving ducks out of this. Your right.
It sounds like they have some control and therefore some responsibility. Perhaps they should get some proper legal advice - from a lawyer rather than one of use anorak types.
I suspect that the terms of the lease and the franchise agreement will set out who controls what and, therefore where the responsibility lies. Keeping your eyes shut isnt really a good idea.
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yes wee brian quite right the example Retty gave isnt straight forward
"The duck now lies shredded in a pancake, boiling in the Hoi Sin of your lies"
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oooh tasty!
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John it looks from your description that Article 22 applies, so that both the manager and the company are Responsible Persons. It does however raise the question of whether the findings need to be recorded under the 5 person rule.
Another point is that as the principles of the RRO are similar to the HSWAC, ignorance is unlikely to be an accepted defence. So even if the manager did not send copy of the FRA to the parent company they would still be liable.
The RRO may be a bit dodgy on the practical aspects of fire safety but it looks as if they have sewn up the blame game.
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Can I ask for your thoughts as to the responsible person and the individual who would be prosecuted if such a situation were to occur within a county fire station owned by the local authority. Deficiencies identified by a FSO and the service has passed responsibility to the local manager to carry out RA. He has to bid for funds therefore I cant see that he has contol over premises although he would be liable in part perhap if negligent.
Any suggestions/comments
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The responsible Person would be the fire authority and possibly the Chief Fire officer could also be - depending who actually is the employer of the persons who work there.
(Whereas in the Police I understand that the Police Authority employ the Chief Constable and the Chief Constable employs the policemen. I dont believe it works like this with the fire service)
Drifting off I could take you to many a fire station in several authority areas - some big ones- that have no fire alarm system at all, inner rooms with no vision panels, unprotected stairs serving sleeping??? accommodation, no emergency escape lighting, no signs, - but its often do as I say not as I do isnt it. I would wager there are many that havn't addressed their risk assessment either.
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Whilst I welcome some aspects of the RR(FS)O with regards to responsibility, lets all of us be honest on this, the Government has placed the responibility of fire safey on the owner / occupier to carry out an FRA. Q. Is he or she qualified to undertake the task? Under prevoius legislation, one could rely on the FRS to carry this out either by "Goodwill" or Certification of the FPA, (Clearly old school arent I!), now the FRS is a Gamekeeper, (when it is available), or after a fire occurs to issue a prosecution as necessary. In my opinion, the scope of the RR(FS)O merely shifts the burden of blame, (after the event), to the the guy who wants to run his own business, its like asking a second-hand car dealer to provide a new car warranty. Yes I do welcome the work it puts my way, but as for the onus it puts on small businessses without clear guidance, (wishy - washy compliance to the 11 RR(FS)O guides), I feel that support is sadly lacking.
I remember a time when the FRS was held in high-esteem for the advice and support it gave to the public and commercial sector alike, I feel we have lost this valuable plot and become an extension of the regulatory Government Quango's that dog's society these days.
Please don't miscontrue the above, I will always help and advise anyone who asks for FRA guidance, but I fear the FRS as we knew it, is dissapearing into a black hole where public support will sadly wane and die.
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I have been told many times in the past that the reasons that Fire Sations do not have Fire Alarms is that the personnel do not sleep, they just rest add that to the fact they are trained staff and they will be safe!!!!!!