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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: messy on April 17, 2005, 08:46:35 PM
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Now the FPWP Regs are 8 years old, should fire authorites prosecute those who have failed to carry out (and act on) a FRA?
I accept that publicity with regards to the regs has been minimal to non existant, but that wouldn't protect me if I wasn't aware of a change in the law. In fact a neighbour of mine was fined recently for not informing DVLC that his car was off the road as he was unaware of the SORN legislation. His appeal that he was unaware naturally fell on deaf ears.
Should fire brigades adopt a similar strategy rather than the softly softly 'inform and educate' policies which have failed to do just that!. I have not heard of one prosecution by a fire authority of an employer solely for failing to carry out a FRA. Maybe fixed penalty notices are the answer? Will RRO help or will this be another set of regulations/laws ignored by the majority?
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Now the FPWP Regs are 8 years old, should fire authorites prosecute those who have failed to carry out (and act on) a FRA?
Yes (http://www.fire.org.uk/punbb/upload/img/Oxygen_new.png) 100% (http://www.fire.org.uk/punbb/upload/img/Oxygen_new.png) This is a Life Safety issue, what could be more important.
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Unless there is enforcement & where necessary prosecution you might as well not have any fire regulations.
However the trend seems to be moving to legislation that allows savings in FRS spending on enforcement (by not doing much & civilianising), placing an additional burden on compliant employers (their words) and allowing those who don't give a damn to save money and operate hazardous workplaces.
In the almost 6 years since FP(W)R was amended to include the type of premises we deal with (certified ones) only 1 building in 1 city (Manchester) have we come across occupants threatened with prosecution if they had not completed an FRA within a prescribed time (& that only because the buliding was an unusual risk due to oversights on means of escape permitted in the bulidings 1983 fire cert).
For the rest where they hae actually had a visit in the last 6 years less than 50% had occupants issued with the brigades FP(w)R guidance note, the rest it wasn't even mentioned.
Although less than some years ago, there are still those ignorant of the regs.
What hope RRO????
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One of the problems with the WP regs is that the "offence" of not carrying out the Risk Assessment is not clearly defined.
The WP regs are horribly messy because they amend the H&S regs reather than doing things from scratch. The RRO is a little clearer on this so Brigades may be more inclined to take action.
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Notwithstanding Cheshire prosecuting Staples for not carrying out a FRA, I remain unconvinced that there is, per se, any offence involved in not carrying out an FRA. There is such an offence in the case of a H&S FRA, but not, it would seem to me, a FRA, unless linked to other offences that could be proven to have been precluded by the failure to carry out the FRA. Cheshire did promise to explain to me how they managed (other than by bluffing the ladies with the flowery hats and the local butchers on the bench), but that was about 2 -3 years ago, and I am still waiting!
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Checking the actual statute law, there is no offence under the most recent version of the FP(W) Regs of not carrying out an FRA as these regs do not include a duty to carry out an FRA as Colin says.
Regulation 3(1) of the Management of Health & Safety at Work Regs 1999 is the one that makes an FRA a legal requirement;
Risk assessment
3. - (1) Every employer shall make a suitable and sufficient assessment of -
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.
Regulation 7 is the one about competent persons
Regulation 8 covers the emergency plan requirements
The Regulation does not specify any specific Enforcement Agency, so one must assume that the enforcement bodies are those under the enabling act, i.e. HASWA 1974 which normally is the HSE or local authority Environmental Health Dept.
So if you do not provide suitable and sufficient MoE the fire brigade gets you, if you haven't an emergency plan, FRA, competent person or don't cooperate only the HSE/EHO can get you - confusing!
Regulation 11 requires co-operation and coordination of shared workplaces.
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If there is something wrong with the building deal with that - an 'enforcement notice' would be the best route; and prosecute for failing to comply with the notice if things aren't sorted. However, I fear that brigades would be on dangerous ground to prosecute someone for simply not filling in a form!
I've always believed that far more can be achieved if fire officers do not act like traffic wardens.
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An interesting question, and one that needs answered now that Brigades are implementing their IRMPs....and many are cutting their Fire Safety Inspecting Officers (or is that Community Safety Operatives?).
I agree with AnthonyB - the current WPRegs and the proposed RRO will be naught but Paper Tigers if they do not have effective enforcement behind them. How many Brigades address this issue under IRMP? Also, the key to answering this question lies within regulation 9(2)(b) which subsumes the relevant regulations from the Management Regs and deems them as Workplace Regulations. Ergo, a failure to carry out a FRA can only be prosecuted by the Fire Authority if that failure places one or more employees at serious risk of death, etc. Or if the requirement to carry out the FRA is included in an enforcement notice and it has not been complied with.
The point about Regulation 3(1) is that this places a duty on employers to carry out an assessment of risk on a whole raft of things including fire risks. The assumption made in 1997 that all employers would have in place safety management systems and it would be relatively simple to add fire to the list was a wee bit ambitious!
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The question is...why would anyone want to prosecute for failure to carry out a fire risk assessment?
If the premises are safe but no FRA has been carried out, there is no need, indeed I think it would by an abuse to prosecute simply for a lack of FRA.
If the premises are unsafe, escape routes, warning etc, then there is Reg 11, failure to comply with the requirements of the regs, to use.
No FRA is indicative of poor management but if by some other means, the premises remain low risk or safe then the objective of the legislation has been achieved.
Apparently excellent FRA's do not automatically mean safe buildings.
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The question is...why would anyone want to prosecute for failure to carry out a fire risk assessment?
If the premises are safe but no FRA has been carried out, there is no need, indeed I think it would by an abuse to prosecute simply for a lack of FRA.
If the premises are unsafe, escape routes, warning etc, then there is Reg 11, failure to comply with the requirements of the regs, to use.
I see your point, however this illustrates the difference between the enforcement ethos of fire versus Health & Safety.
Most H&S criminal cases will deliberately prosecute for lack of a sufficent (or any) RA in addition to any charges for breaches of specific duties, resulting in a double-whammy for the defendant upon sentencing.
In the H&S field the written RA is the pinnacle and places ignore them at their peril. which is why most places I visit have giant piles of paperwork containing dozens of RAs for the myriad of H&S regs, yet have nothing for fire - they are still used to basing fire precautions on an equal split between what the brigade FPO tells them & what their fire protection contractor silver tongues them into
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The question is...why would anyone want to prosecute for failure to carry out a fire risk assessment?
In my opinion, the law of the land states that employers must assess this risk and record their findings.
Now we would all get prosecuted when we drive too fast (even if we don't kill someone) or carry a gun (even if we don't shoot someone.)
So, I would be in favour of prosecution for all those employers who ignore their legal requirements to undertake a fire safety risk assessment. What justification is there for not doing this? Employees have rights, they ought to be able to see the risk assessment to establish if they are safe. If everything is fine and dandy, then it can't be too much bother to document that.
Of course the presence of a FRA alone doesn't mean the place is safe. But if it has been done properly, and the recommendations carried out, then it ought to mean just that.
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Chris, There is NO specific offence associated with not carrying out a FRA pre se. No offence, no prosecution.
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Well, don't tell anyone else!
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With regard to the question members might find below interesting
At Chippenham Magistrates Court on Tuesday 19th April 2005, the national tool hire company "The Hire Station" was successfully prosecuted for failure to comply with an Enforcement Notice served by Wiltshire and Swindon Fire Authority under The Fire Precautions Workplace Regulations (as amended) 1999.
The Fire Authority carried out an inspection of the premises after the Local Authority's Environmental Health department raised concerns as to the standards of fire precautions. Several failings under the Regulations were found and an Enforcement Notice was duly served to the premises and to the company secretary at the head office. After the period of the notice had elapsed, a further inspection was carried out and it was established that the requirements of the notice had not been met.
The Hire Station was charged with three separate counts of failure to comply with the Notice under Regulation 15.
1. Failure to carry out a suitable and sufficient risk assessment.
2. Failure to provide a suitable and sufficient system of emergency
lighting.
3. Failure to provide a suitable system of fire detection and
warning.
The Hire Station pleaded guilty to all three charges and quoted failings at middle management level as the reason for the non-compliance and that these failings had now been addressed.
In their decision, the court stated that they would take the early guilty plea into consideration but that they regarded the failings as very serious in nature. A fine of £4000 was awarded for each offence, £12000 in total. Costs of £2062 were also awarded to the fire authority.
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The offence then was not failure to carry out a FRA, but failure to comply with an enforcement notice; to do so is clearly an offence.
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Changing the subject slightly; what about insurance.
If a company fails to carry out a FRA or does not act upon any significant findings resulting from a FRA, could this invalidate their insurance in the event of a fire?
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On what basis are enforcement notices served?
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The Management of Health and Safety at Work Regulations 1999
Risk assessment
3. - (1) Every employer shall make a suitable and sufficient assessment of -
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997
Therefore if you do not carry out an assessment that would in content be amazingly similar to what we call an FRA you are in breach of Regulation 3 of MHSWR '99, which is an offense (as many companies who breach H&S regs have found out as if they have no suitable RA then they will get stuck for that as well as the breaches of the specific regs involved in the accident)
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Changing the subject slightly; what about insurance.
If a company fails to carry out a FRA or does not act upon any significant findings resulting from a FRA, could this invalidate their insurance in the event of a fire?
Only if undertaking a FRA was a warranty of the insurance policy, or made a requirement in some way. Even then, I think the insurance company would still have to prove they were jeapordised by the failure.
My comments relate to property insurance. I think it's just about impossible to avoid paying out for employers liability (i.e. insurance to cover employees injury or death) insurance.
That said, insurance companies do see this is a key indicator of good risk management. And they are most likely to tell the cusomter to do one following an inspection.
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Chris, an enforcement notice can be served for any breach of the Workplace Fire precautions Legislation. Many fire authortities rarely issue these though, preferring the new softly softly approach that is more in keeping with the enforcement concordat and is arguably a better way to get things done. Other fire authorities still have officers who are more gung ho (are you listening Messy?).
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Unless immediate action is essential, isn't the best route usually:
1. Persuasion; then if no compliance,
2. Enforcement notice; then if no compliance,
3. Prosecution.
ie as in the 'health and safety at work' realm?
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Yup.
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Unless immediate action is essential, isn't the best route usually:
1. Persuasion; then if no compliance,
2. Enforcement notice; then if no compliance,
3. Prosecution.
ie as in the 'health and safety at work' realm?
That has been my thinking for years. However, it's quite evident that 100s of thousands of employers are ignoring their responsibilities. THE WPR are simply not working
Whilst I accept that it's not the FA's job to make a badly written law work, I also feel that when you get high profile companies (like major breweries - some of your mates Colin!) ignoring the regs, perhaps a zero tolerance approach would send a clearer message than the touchy feely tree hugging approach at present.
Gun Ho? Perhaps, but as I have said, 8 years on 90% of punters are still not playing ball. What other option is there?
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Some companys might just wait until the fire brigade comes to give them some free advice on how to comply with the regulations (an enforcement notice). It would save them paying expensive consultancy fees.
Steve
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Failure to carry out a risk assessment is not an offence under the Workplace Fire Precautions Legislation unless that failure has splaced one or more employees at risk of death or serious injury.( Reg 11 of FP(WP)Regs 97 (As Amended).
Failure to carry out a risk assessment is an offence under the HASAW Act Sec 33(c) because the MHSW Regs are relevant stautory provisions. The HSE, but not Fire Authorities, could prosecute under the HASAW Act.
Fire Authorities could serve an enforcement notice requiring an assessment to be made, failure to comply with the notice would be an offence but I don't beleive that would be reasonable if there were no other failures!
The RRO will not change things, have a look at Article 32 and you will see that it will only be an offence to comply with the requirements if that failure places relevant persons at risk of death or serious injury.
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Thats the big "IF". Under the RRO you can only be prosecuted if you failure puts people at risk So why should anybody bother doing a risk assessment, Just wait for the Fire Service to turn up, they will tell you what to do then.
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Not quite Wee Brian!!....it will also be an offence to contravene a requirement of an enforcement notice..so the situation will be the same, if no risk asssessment an enforcement notice requiring one could be served, failure to comply would be an offence. Fire Authorities will not have the time or resources to tell the responsible person what to do...employ a competent consultant if necessary, I know a few!
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That's my point phil. A business man can happily ignore all of this stuff until he gets a visit from the Brigade.
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Wee B, as always, is right. (He must have been in private sector mode when he wrote it.) If there is nothing dramatically wrong with a workplace, people would be immune from prosecution purely for not carrying out an FRA until such time as the fire authority come along and tell them to do one. Then, they will have at least 3 weeks in which to do one. Indeed, we used to have a client that were well aware of this anomaily in the WFPL. We had a programme to do all their fire risk assessments of an estate of over 2000 properties over a 3 year period, with an arrangement that, if they got an enforecement notice requiring an FRA, we would divert and make sure they had it within 3 weeks. This arrangement was put into action on numerous occasions.
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Wee B, as always, is right. (He must have been in private sector mode when he wrote it.) If there is nothing dramatically wrong with a workplace, people would be immune from prosecution purely for not carrying out an FRA until such time as the fire authority come along and tell them to do one. Then, they will have at least 3 weeks in which to do one. Indeed, we used to have a client that were well aware of this anomaily in the WFPL. We had a programme to do all their fire risk assessments of an estate of over 2000 properties over a 3 year period, with an arrangement that, if they got an enforecement notice requiring an FRA, we would divert and make sure they had it within 3 weeks. This arrangement was put into action on numerous occasions.
What was the view of their property insurer of this arrangement?
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Yes, of course he can do nothing until the fire service inspect, just as you could kill your wife until the police visit, but you may be breaking the law. If a person does nothing and that failure places relevant persons at serious risk the fire authority should and hopefully would prosecute. Why is everyone so concerned with the risk assessment itself?
No reasonable enforcing authority should prosecute soley for the failure to carry out a risk assessment.I believe it is a similar concept to the offence under the FP Act of not having a copy of the fire certificate available. Not many FAs would have prosecuted for that offence alone but it would be a bolt on offence if other contraventions were found.
The risk assessment is the responsible persons tool for complying with the legislation, fire authorities should enforce the law and prosecute those who place persons at serious risk. Enforcement appropriate to the risk...not a new concept but apparently not understood by many!
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Most property insurers could not give a monkeys about FRAs. The EL insurers if anything have more of an interest.
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I can't speak on behalf of the industry, but my lot care a whole lot. They are of the opinion, that a properly done FRA, in addition to controling the life safety risk, will reduce the property damage risk. They see it as a benchmark of good risk management, and would make it a requirement of customers who purchase property insurance.