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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: Mushy on March 18, 2009, 06:13:40 PM
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In a hospital there could be 30 different FRA's due to all the different wards under different management control. Who is the Responsible person? is it the Chief Exec or individual ward/department managers?
Ta
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In a hospital there could be 30 different FRA's due to all the different wards under different management control. Who is the Responsible person? is it the Chief Exec or individual ward/department managers?
Ta
I would think that the Enforcement Authority would consider both to be Responsible Persons.
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I'd take the view that the Chief Exec. is the "Responsible Person", however, as described in the RRO the duties of the Responsible Person are conferred upon all those with control over any part of the premises. Hence, the individual ward/department managers are required to discharge the duties of the Responsible Person to the extent of their sphere of influence.
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The RP is enshrined in law in Articlr 3 and is an hierarchy list. Therefore, the Chief Executive is the RP and whilst responsibilities can be discharged to others the actual RP responsibility cannot.
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It matters not a jot who the enforcing authority consider is the responsible person. If there is an employer who as some control, he must be the RP. There will of course be many others who have to some extent control and certain notices can be served on those persons also.
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Joker is correct.
Guidance Note No 1 - Enforcement issued by the Communities and Local Government clarifies the interpretation.
In the case of a workplace Article 3 places unconditional responsibility on the employer.
The reference to 'person(s) with control over a premises' is for premises other than workplaces and NOT a means for an employer to devolve any of his/her responsibilities under the regulation to a manager or any other person within his/her employment
This would include an owner, occupier and a management company in premises such as blocks of flats.
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Absolutely but it maybe worth mentioning the employer could be an individual like the Chief Executive or could be a group like a board who is in charge of the organisation it depends who has the last say.
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It matters not a jot who the enforcing authority consider is the responsible person. If there is an employer who as some control, he must be the RP. There will of course be many others who have to some extent control and certain notices can be served on those persons also.
Surely it would matter a jot PhilB who the EA consider the RP to be. Who else would be interested for the purpose of enforcement?
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The point is the RP is defined in law...the fact that an enforcing authority consider a person to be the RP does not make them the RP...statute does that.
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Article 3 of guidance Note 1 to the RRO is very clear on it's interpretation of who the RP is and it is not necessarily always and only the employer.
Likewise, the fact that a fire risk assessor or employer consider a person to be the RP does not make them the RP.
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Article 3 of guidance Note 1 to the RRO is very clear on it's interpretation of who the RP is and it is not necessarily always and only the employer.
Likewise, the fact that a fire risk assessor or employer consider a person to be the RP does not make them the RP.
I disagree Nearlythere.
Guidance note No.1 is not statute however it is quite clear on this point.
If there is an employer who has some control....he will always be the RP.
This is to satisfy the framework directive. There may be many other persons who have responsibilities under article 5(3), but they are not responsible persons.
It is not up to the risk assessor, the employer, the enforcing authority or anyone other than parliament to offer an alternative definition for RESPONSIBLE PERSON.
Enforcing authorities need to be aware whether or not they are dealing with the employer, a RP who does not employ anyone or a person who has to some extent control because the duties placed on RPs who are employers differ from the duties placed on other RPs and other persons who have control.
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The Chief Exec of a Hospital Trust is not the employer. It is the trust as body coporate which employs people and will also in general as an employer have control of the premises. I am in a LA with a chief exec. but my employer is the council. I have suggested wording of possible summons below. If there is an employer with control it is going to be very difficult if not impossible to name an individual as the RP. The may be several employers and each may get a similar summons but as long as there is an employer with control of the workplace to any extent then that employer is the RP and part B of article 3 wil not apply.
Information of Ace F&RS that P-Poor Health Trust being an employer and having control of the workplace at P_Poor hospital and therfore the responsible person as defined in article 3 of RRO did contravene article 5 of the RRO order in that it failed to ensure the safety so far as reasonably practicable the safety of its employees by failure to provide safe storage of highly flammable................
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Hi Martin
You are correct. The Trust board would be the collective "responsible person" as they are the employers.
The Chief Exec is appointed by the Trust - or put simply - the Trust Board can "hire and fire" the Chief Exec
HTM 05-01 also clears this issue up with the following:-
Role of Chief Executive
"4.4 The Chief Executive is responsible for ensuring that current fire legislation is met and that where appropriate fire code guidance is implemented in all premises owned / occupied by the NHS Organisation
Role of the Board
"4.5 The Trust Board has overall accountability for the activities ofthe organistion. The board should ensure they have appropriate assurance that the requirements of current fire safety legislation are being met. "
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The Chief Exec of a Hospital Trust is not the employer. It is the trust as body coporate which employs people and will also in general as an employer have control of the premises. I am in a LA with a chief exec. but my employer is the council. I have suggested wording of possible summons below. If there is an employer with control it is going to be very difficult if not impossible to name an individual as the RP. The may be several employers and each may get a similar summons but as long as there is an employer with control of the workplace to any extent then that employer is the RP and part B of article 3 wil not apply.
Information of Ace F&RS that P-Poor Health Trust being an employer and having control of the workplace at P_Poor hospital and therfore the responsible person as defined in article 3 of RRO did contravene article 5 of the RRO order in that it failed to ensure the safety so far as reasonably practicable the safety of its employees by failure to provide safe storage of highly flammable................
Bloomin flippin good point Martin!
In many cases involving organisations it will be the organisation...sometimes the body corporate that are the employer...not the chief execuive or managing director. So enforcing authorities need to be aware of these facts. If the enforcers believe the chief exec is at fault as an individual, they may be able to sucessfully prosecute him/her as an individual.
This, in my opinion, emphasises the need for appropriate training, which sadly is sometimes lacking.
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Surely it's the body corporate which is the RP in most situations.
I have compiled many notices and would not put 'Richard Branson' down as the RP, merely 'Virgin Atlantic' (or whatever).
I can't see what the problem is here. As Jokar and others have stated, it's a hierarchy with the employer at the top. This only causes difficulties (in some cases) when there's no employer - such as common parts of flats being run via resident association committee, via a managing agent.
I had a complicated example once where the RP (employer) was a department of a wealthy foreign state and, if you ignore the employer definition of RP, the 'person in control' had diplomatic status, despite the building not having such status.
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Surely it's the body corporate which is the RP in most situations.
I have compiled many notices and would not put 'Richard Branson' down as the RP, merely 'Virgin Atlantic' (or whatever).
Quite right Messy...it is the body corporate not the individual. But it is important to realizzze that if the RP is an employer they have an absolute duty to comply unlike others who are not employers.
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An old thread relevant to this thread try http://forum.fire.org.uk/index.php?topic=3022.0
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Comparing the FSO with the HSAWA I thought the idea was that the two worked in the same manner. Under the HSAWA the MD is held responsible and a number of them have benn fined and imprisoned for offences. There is also the new legislation about Corporate Responsibility which closed the loophole of Directors hiding behind the legal company persona.
At the end of the day it will be the courts who decide who is the RP, however if you follow the HSAWA the MD or the CEO will be held responsible.
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Mike
I am not too familiar with the HSAWA but the RR(FS)O is clear, the employer is the RP in a workplace so you have to decided who the employer is in an organisation. Martin says “The Chief Exec of a Hospital Trust is not the employer. It is the trust as body corporate which employs people” so the trust is the RP. I would also think this applies to all organisations that are run by a body corporate (limited company) the problem is who you send any enforcement notices to. In a previous thread a high consensus of opinion was the company secretary not the CEO or MD.
What new legislation are you referring to?
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I would assume he is referring to the Corporate Manslaughter and Corporate Homicide Act 2007.
The Corporate Manslaughter and Corporate Homicide Act introduces a new offence, across the UK, for prosecuting companies and other organisations where there has been a gross failing, throughout the organisation, in the management of health and safety with fatal consequences.
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I suspected so, but if this is the case, then I would hope that most enforcement action would not have got to a stage that involved fatalities, manslaughter or otherwise.
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HSW '74 and RRO are not comparable in terms of getting the MD in court. HSW 74 has section 37 which says where an offence by a body corporate is comitted with consent,connivance or neglect of a director, amanager etc that person as well as the body corporate a can be proceeded against. I'm not aware of any similar provison in fire safety order. If there is an employer in control of a workplace that employer is RP.
Interesting Q about who you serve documents on. For a limited company company sec. at registerd office for an LA the town clerk (this title is usually preserved as a part of the chief execs duties), for a hospital health trust I haven't a clue.
Corporate manslaughter legn has changed but this is a CPS matter. HSE and LAs enforcing HSW 74 have a formal agrrement with CPS about investigating workplace fatal incidents. I presume Fire Services Have a similar approach. Yes, I know the dangers of presuming.
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The fire safety order has an identical provison in article 32. If the enforcing authority believe the MD or other senior manager is at fault they could be prosecuted as an individual.
In most cases it will be the body corporate that is at fault and in that case notices would be served on the company secretary but made out to the body corporate.
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Oops my mistake. Article 32 Fire Safety Order does mirror Section 37 of HSW act.
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For clarification:
( 8 ) Where an offence under this Order committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of that offence, and is liable to be proceeded against and punished accordingly.
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The fire safety order has an identical provison in article 32. If the enforcing authority believe the MD or other senior manager is at fault they could be prosecuted as an individual.
In most cases it will be the body corporate that is at fault and in that case notices would be served on the company secretary but made out to the body corporate.
Just to add to PhilB's reply above
Confusion often arises where the "Body Corporate" is not a limited company, and, therefore, no Company Secretary involved.
Take our example on this thread - a hospital. As we've acknowledged the trust board is the RP .
All notices would be served, I suggest, on the Chairperson of the board (as there is no company secretary) but made out to the body corporate.
Hope that clears it up.
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Thanks all
so the consensus of opinion is that it is the trust board that are the responsible persons in a hospital trust
each ward and department has a manager....if they are lets say, constantly wedging open kitchen fire doors (each ward has one) the board are responsible with regard to the RRO and not the ward manager?
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Yes mushy to a point. They have clearly as a board failed to implement effective management procedures to ensure the safety of relevant persons. So the buck stops with them but then dont overlook articles 23 (general duties of employees at work) and article 18 ( safety assistance) and article 32 (offences).
The Responsible person must appoint competent persons to assist him undertake the preventive and protective measures, those individuals must follow instructions and not misuse or abuse anything provided for the purpose of fire safety and are guilty of an offence if they do so.
The employer will always be held responsible for the actions of their staff. Its called Vicarious responsibility and applies in all areas of H&S at work.
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Thanks Kurnal
'The Responsible person must appoint competent persons to assist him undertake the preventive and protective measures'
isn't this to assist in the FRA?
the FRA could be already done and staff continue to flout the RRO...
I see your point about the RRO articles
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'The Responsible person must appoint competent persons to assist him undertake the preventive and protective measures'
isn't this to assist in the FRA?
No Mushy the "preventive and protective measures" means the measures which have been identified by the responsible person in consequence of a risk assessment as the general fire precautions he needs to take.
In the hospital example it may be that the ward manager has been appointed as such a person by the responsible person. The ward manager would not be a resposible person but a person who has to some extent control.
Enforcement notices could be served on either the RP or the ward manager and offences could be committed by both parties. Furthermore anyone could be prosecuted if the offence is due to their act or default. Article 32(10)
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Thanks all
so the consensus of opinion is that it is the trust board that are the responsible persons in a hospital trust
each ward and department has a manager....if they are lets say, constantly wedging open kitchen fire doors (each ward has one) the board are responsible with regard to the RRO and not the ward manager?
My take on this type of issue where a local manager is flouting the 'preventative & protective measures' as detailed in the FRA (wedging doors and obstructing escape routes etc), is that the local manager (perhaps as well as the RP) could be prosecuted under Article 5(3) which states:
(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.
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Hi Messy
Yes you are correct. Infact anyone can be prosecuted under the RR(FS)O see article 32 (2)(10) if they commit an offence.
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Yup
Just like a HSE inspector can nick a builder for not wearing his hard hat.
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Going back to the hospital scenario, where does the chief executive fit in to the scheme of things?
Bungle
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He meets the definition of anyone. So he can be nicked. But he aint the RP.
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Bungle it depends.
Take a look at article 32(2)(8 ).
It basically states that if an offence has been commissioned with the consent or connivance of, or can be attributable to, any neglect on the part of any director, manager, secretary, or other similiar officer of body corporate then that director, manager, secretary etc, can be prosecuted along with the body corporate.
So if the Chief Exec is part of the trust board and it can be proven that he / she did something in order to commision an offence which fits the above article then he / she may be prosecuted as well as the RP!
If not however it would purely be the body corporate (Trust Board) that would be punished.