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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: Tom Sutton on June 24, 2010, 04:05:44 PM
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Received an interesting enquiry to day is it a common problem.
I am struggling to get volunteer fire wardens within my organization due to a general opinion that if a person is a fire warden and undertakes training to carry out that function, they leave themselves open to personal prosecution if , for whatever reason, they fail to react appropriately in a fire situation.
Any views?
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I'm often asked about accountability during training sessions; my answer is that you will not be held responsible for failing to carry out your duties as long as you have made a reasonable effort to do so. My problem arises from people who are coerced into doing it, I tell them that if they're not comfortable with the role then I'd prefer them not to do it.
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I will just add weight to Gasmeter's comments. There is no way that a fire warden would be held responsible for any failure unless that failure was a result of their wantonly and deliberately negligent acts. Even if they do make a mistake (accidentally and not through negligence) and something goes wrong the blame will always be passed up the line through trainers, managers, budget holders and policies, ultimately to the responsible person. Tell them about vicarious liability.
This problem sounds like an excuse rather than a valid reason.
Stu
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If push comes to shove, can an employee legally refuse to carry out specific duties in an emergency as detailed in the Employer's emergency plan?
Article 23. —(1) Every employee must, while at work—
(b) as regards any duty or requirement imposed on his employer by or under any provision of this Order, co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with;
These duties on the employer are imposed thrrough article 15
Article 15. —(1) The responsible person must—
(a) establish and, where necessary, give effect to appropriate procedures, including safety drills, to be followed in the event of serious and imminent danger to relevant persons;
(b) nominate a sufficient number of competent persons to implement those procedures in so far as they relate to the evacuation of relevant persons from the premises;
And article 18
18. —(1) The responsible person must, subject to paragraphs (6) and (7), appoint one or more competent persons to assist him in undertaking the preventive and protective measures.
The meaning of "Protective and preventive measures" and "general fire precautions " are
defined in articles 2 and 4.
From this I would suggest that it is appropriate for an employer to give reasonable instructions to an employee in respect of their actions in case of fire and that these may include the normal duties attributed to by the role of a "Fire Warden" - ie initiating an evacuation, helping to ensure the premises are fully evacuated in a timely manner, assisting persons with special needs and the use of fire fighting equipment, all of course subject to training and ability.
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Thanks guys, since 1974 the HASWA has imposed duties on employees for which they could end up in court but no fuss has been made of this. I think it is the litigious environment we live in these days everybody seems to be concerned if they make a mistake they will find them selves in court. In reality, I believe this is not the case providing they have taken all reasonable measures and have not committed deliberately negligent acts they should have nothing to fear.
As kurnal said you may be able to require an employee to carry out the duties of a fire warden but I would prefer not to, one volunteer is worth a thousand pressed men, so they say.
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What impact does the Fire Safety (Employees Capabilities)(England) Regulations 2010 have, if any;
Employer to take employees’ capabilities into consideration
2. Every employer must, in entrusting tasks to employees, take into account their capabilities as regards health and safety, so far as those capabilities relate to fire
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What impact does the Fire Safety (Employees Capabilities)(England) Regulations 2010 have, if any;
Employer to take employees’ capabilities into consideration
2. Every employer must, in entrusting tasks to employees, take into account their capabilities as regards health and safety, so far as those capabilities relate to fire
I think the definition of a Competant Persons covers that point.
18. (5) A person is to be regarded as competent for the purposes of this article where he has sufficient training and experience or knowledge and other qualities to enable him properly to assist in undertaking the preventive and protective measures.
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Hi TW
We indemnify Marshals, Wardens, First Aiders etc unless what they do is unreasonable,
Management should also have an understanding of the average person's reaction to a genuine fire
Yes you can insist on appointing them but if they are not comfortable after training we look elsewhere
davo
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In theory a fire warden could be prosecuted.
Dont forget if the RP can prove he or she has done everything practicable to appoint and train their fire wardens to an acceptable standard, that the training was appropriate, undertaken regularly with some proof of learning mechanism as a measure that the training had been absorbed, that the fire warden volunteered to do the role and was not forced into it, and yet despite all that the fire warden did something catastrophic, or went against their training for whatever reason during a fire, causing the commission of an offence, then the warden could be held accountable.
As Tom points out however similar scenarios could exist under the HASAWA but nothing along these lines have ever ended up in court to my knowledge, and I dont see anything like this happening under the RRO either.
Clearly any investigation would have to be indepth and look at so many different factors involving culpability at that level, and I suggest the arguments for a fire warden being held responsible would be outweighed by the argument for the fire warden not to be held responsible .
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I always find the issue of nominated fire wardens and persons to assist the RP as being somewhat unfair.
It seems to be a case of the RP being able to nominate persons, whether they like it or not, and giving them responsibilities which if they go belly up could mean a criminal conviction. Is this really the way it should be?
Yes, all employees are responsible for fire safety in general, but is it right to make some criminally liable by nomination.
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Absolutely agree Nearlythere, and this is why I said in theory that the poor old fire warden could be prosecuted but I seriously doubt in reality that it would ever happen.
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If they did something wrong and got sued, the the person who wanted to sue them would sue their employers, not the individual. The employers would be vicariously liable unless the employee really did something completely outside the scope of his employment. Most probably the employers have public liability insurance and for sure they have employers liability insurance for this very scenario.
Same as any other work based task.
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PLI would not be protection from the prosecution of a warden or person nominated to assist Chris.
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I think the odds are stacked in favour of the employee as Chris said "vicariously liability" for instance and like the HASAWA it would be very unlikely for a fire warden to be prosecuted under the RR(FS)O.
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Dont forget if the RP can prove he or she has done everything practicable to appoint and train their fire wardens to an acceptable standard, that the training was appropriate, undertaken regularly with some proof of learning mechanism as a measure that the training had been absorbed, that the fire warden volunteered to do the role and was not forced into it, and yet despite all that the fire warden did something catastrophic, or went against their training for whatever reason during a fire, causing the commission of an offence, then the warden could be held accountable.
All very true but remember that the very fact that "the fire warden did something catastrophic, or went against their training for whatever reason during a fire, causing the commission of an offence" is evidence that the employer has not "done everything practicable to appoint and train their fire wardens to an acceptable standard."
I'm not saying that the blame always lies with the employer but I am saying that blame does tend to lie mainly with the employer. Specific cases will always have to be examined in the courts.
Stu
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All very true but remember that the very fact that "the fire warden did something catastrophic, or went against their training for whatever reason during a fire, causing the commission of an offence" is evidence that the employer has not "done everything practicable to appoint and train their fire wardens to an acceptable standard."
Why is it?. You work at my saw mill. I train you how to use the big cutting saw properly and appropriately to always use the machine's guard. You say you understand. I get you to sign a piece of paper to say youve had training and understand it. I put a big sign up by the machine which says always use machine guard. I monitor you on the machine for a week to make sure you are using it properly. A week later you cut your hand off cos you didnt use the machine guard. I ask you what happened and you tell me you weren't concentrating. So as your employer thats my fault is it Stu? On one hand you say Rettys statement about appropriate training is true but then go on to contradict it by intimating that automatically if an employee cocks up it must be the employers fault.
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All very true but remember that the very fact that "the fire warden did something catastrophic, or went against their training for whatever reason during a fire, causing the commission of an offence" is evidence that the employer has not "done everything practicable to appoint and train their fire wardens to an acceptable standard."
Why is it?. You work at my saw mill. I train you how to use the big cutting saw properly and appropriately to always use the machine's guard. You say you understand. I get you to sign a piece of paper to say youve had training and understand it. I put a big sign up by the machine which says always use machine guard. I monitor you on the machine for a week to make sure you are using it properly. A week later you cut your hand off cos you didnt use the machine guard. I ask you what happened and you tell me you weren't concentrating. So as your employer thats my fault is it Stu? On one hand you say Rettys statement about appropriate training is true but then go on to contradict it by intimating that automatically if an employee cocks up it must be the employers fault.
Employers fault? Untimately yes C3 but the employers training and monitoring of the individual would be a mitigating factor. The better the training and monitoring the better the mitigation.The fact that the employee lost his hands showed something was amiss.
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All very true but remember that the very fact that "the fire warden did something catastrophic, or went against their training for whatever reason during a fire, causing the commission of an offence" is evidence that the employer has not "done everything practicable to appoint and train their fire wardens to an acceptable standard."
Why is it?. You work at my saw mill. I train you how to use the big cutting saw properly and appropriately to always use the machine's guard. You say you understand. I get you to sign a piece of paper to say youve had training and understand it. I put a big sign up by the machine which says always use machine guard. I monitor you on the machine for a week to make sure you are using it properly. A week later you cut your hand off cos you didnt use the machine guard. I ask you what happened and you tell me you weren't concentrating. So as your employer thats my fault is it Stu? On one hand you say Rettys statement about appropriate training is true but then go on to contradict it by intimating that automatically if an employee cocks up it must be the employers fault.
Employers fault? Untimately yes C3 but the employers training and monitoring of the individual would be a mitigating factor. The better the training and monitoring the better the mitigation.The fact that the employee lost his hands showed something was amiss.
Thank you NT. Yes. Unfortunately, C3 (?) you knew I was an alcoholic and also knew I was prone to 'fall off the wagon' occasionally and yet you let me loose on a piece of equipment that was capable of cutting my hands off!
I can tell you, it's not easy to type this! Not while I'm so drunk.
Stu
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Some interesting guidance for HSE inspectors re prosecuting individuals:
http://www.hse.gov.uk/foi/internalops/fod/oc/100-199/130-8.htm#app1 (http://www.hse.gov.uk/foi/internalops/fod/oc/100-199/130-8.htm#app1)
"Summary
This document tells you about HSC's policy on prosecuting individuals, gives you our current instructions on the issue, gives you some guidance and tells you where you can find additional help. The entire document is 'open', except for Appendix 5, which is 'fully closed'."
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C3
'On one hand you say'
Of course it would be, I've chopped the other f****r off :'(
davo