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THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: kurnal on January 08, 2011, 08:43:11 AM
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Article 33 provides a defendant with a defence of due diligence ie it is open to the person charged with an offence under the Order to prove he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.
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 apply to an employer where failure to comply with the provisions of the Order is due to an act or default of his employees or appointed competent persons.
1- Why was it considered necessary to limit the due diligence defence in this way? Is it because it would undermine or conflict with other legislation in some way? Or were there other reasons behind it i.e. the European Directives?
2- Do you think the absence of such a defence applicable to Employers strengthens or weakens the case for third party accreditation of fire risk assessors and other contractors?
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My immediate feelings are that in 1. These areas will overlap with other legislation such as the Health and Safety at Work Act for the general fire precautions and the Control of Substances Hazardous to Health regs for the dangerous substances.
As far as 2. goes I think this moves the onus for requiring third party accrediation away from the government and straight into the hands of industry. I feel the government is loath to turn round and say employers can only use the services of an accredited person as it would be seen as a restriction on free trade.
I also see it as an attempt to close loopholes that might be exploited by some of the less scrupuless employers. We all know that there are employers who will ignore the law until it bites them and then try to find every excuse to get off.
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For item 1 check out RR(FS)O Article 32(11) may be relevant?
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Yes I agree Tom but what is the logic of allowing a defence of due diligence in some cases and not others?
Mike I think I agree with you but am also mindful of Article 47?
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(11) Nothing in this Order operates so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of -
(a) an employee of his; or
(b) a person nominated under articles 13(3)(b) or 15(1) or appointed under 18(1).
The way I read it is the employer cannot use the contravention of any act by an employee, which includes competent persons, as a defence, which would include due diligence, the reason I suspect is vicarious liability. However the employee could be prosecuted under 32(2)
http://www.lawteacher.net/tort-law/lecture-notes/vicarious-liability-lecture.php
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Tom Thankyou.
As I see it this answers the second sentence of the guidance:
Nor does the defence apply to an employer where failure to comply with the provisions of the Order is due to an act or default of his employees or appointed competent persons.
The appointment of a fire consultant to carry out a fire risk assessment will be a contract for service. The employer will remain liable, quoting from the Lawteacher website
"An employer will usually be liable for (a) wrongful acts which are actually authorised by him, and for (b) acts which are wrongful ways of doing something authorised by the employer, even if the acts themselves were expressly forbidden by the employer (Salmond & Heuston on the Law of Torts, 1996, p443)."
Hoowever why should it be necessary to specifically re-iterate in the Order an accepted principle that has been universally applied elsewhere?
This still leave the first element unanswered:
"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."
Or am I still missing something? Why is is it necessary to create the defence of due diligence and then remove it if the persons at risk are employees? Perhaps I am misinterpreting the intent of the Order.
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"Disapplication of the Health and Safety at Work etc. Act 1974 in relation to general fire precautions
47.—(1) Subject to paragraph (2), the Health and Safety at Work etc. Act 1974(1) and any regulations made under that Act shall not apply to premises to which this Order applies, in so far as that Act or any regulations made under it relate to any matter in relation to which requirements are or could be imposed by or under this Order.
(2) Paragraph (1) does not apply—
(a)where the enforcing authority is also the enforcing authority within the meaning of the Health and Safety at Work etc Act 1974(2);
(b)in relation to the Control of Major Accident Hazards Regulations 1999(3)."
The way I read this is that in the case of fire safety, the fire authority has greater authority than the HSE. The give away is Paragraph 2 (a) where the enforcing authority enforces both Fire Safety and Health and Safety.
It is also interesting that the COMAH Regs outweigh the FSO.
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Thanks Mike. But I dont agree that the Fire Authority have greater authority than the HSE. Both have responsibility for the enforcement of the Order in certain situations (article 25) and I suggest equal authority under the Order.
But the Fire Authority are not responsible for the enforcement of most of the general H&S Legislation and Regulations so article 47 makes it clear in case of any legal overlap that where the Fire Authority is responsible for enforcement that the Fire Safety Order over rides any other H&S legislation in respect of fire matters. Otherwise RPs might pick and mix which bits of the general H&S and Fire legislation and guidance suited them in their defence.
But where the H&S are responsible for enforcement they can pick the legislation that best suits their own needs. For example in this case last week,
http://www.hse.gov.uk/press/2010/coi-nw-47musicbox.htm
Instead of using the Fire Safety Order the HSE brought the prosecuton under the CDM Regs.
(But this was a building with multiple occupiers so it is unclear why the Fire Authority were not involved as they would appear to be the enforcing Authority under the Fire Safety Order)
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Yes I agree it should have been the legislation not the authority.
With regard to the prosecution you mentioned, the non involvement of the fire authority also struck me. However there is one area which might explain it. The HSE has the power to take action to remove a source of danger where I do not believe the Fire Authority has that. Given that the HSE may have used CDM as it felt itself on firmer ground than using the FSO.
An example I heard of in Health and Safety occured in a factory where a HSE Inspector came into the factory and saw a machine that was standing on one side. He immediately condemned the machine and made arrangements for the machine to be removed from the factory. He informed the factory owner who commented "Thank God for that, I've been trying to get rid of it for ages but no one would take it!"
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This is all too coplicated when it is really quite simple. As anyone who understands the background to fire safety legislation should know, you cant have a qualification to the requirements of a European Directive. GB tried in 1997 and were severely castigated by the EU as a result. Understanding this fundamental tenet is essential for anyone dealing with the FSO.
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http://www.hse.gov.uk/press/2010/coi-nw-47musicbox.htm
Instead of using the Fire Safety Order the HSE brought the prosecuton under the CDM Regs.
(But this was a building with multiple occupiers so it is unclear why the Fire Authority were not involved as they would appear to be the enforcing Authority under the Fire Safety Order)
Kurnal - I suspect the reason may have been because it was easier to prove the CDM breaches as some of them are quite black and white. For example, it is easy to show whether a project has been notified and whether a pre-construction plan is in place.
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A look at the EEC directives may prove useful as indicated by CT specially articles 5 & 6 of 89/391/EEC.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31989L0391:EN:HTML
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31989L0654:EN:HTML
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Due diligence will only help reduce the penalty it won’t absolve the RP totally in certain circumstances. In other circumstances it could absolve the RP totally.
For example, if the RP appoints a competent individual to complete a fire risk assessment on their behalf and implements all the findings of the assessor. They could claim due diligence as a defence as long as the competence of the fire risk assessor can be proven beyond reasonable doubt. Hence there is a need for accredited certification and not self certification or non accredited certification.
If the FRS audit and find fault with the fire safety provisons the RP is still liable for the offence and could face a fine or a custodial sentence. If the case came to court it will be difficult for the prosecution to say what else the RP could have been reasonably expected to do and thus the outcome may still be against the RP but the punishment may not be as severe as in cases where for example the RP has selected a fire risk assessor without proven ability.
If an employee or appointed competent person mess up the RP can’t wash his hands totally but it will then be for the prosecution to make a case against the RP as to why the employees failed to do what they should have.
Another example would be if a competent fire risk assessor in his report suggested that some fire doors needed replacing with appropriate tested door sets by a competent installer and the RP buys normal internal doors and gets his handyman to install them. If one of those doors failed and a life was lost, the RP obviously can’t claim due diligence as a defence. However if the RP used an accredited company who installed a certificated product and it failed the RP can not be held accountable as he would have done all that is reasonably possible to get it right. The focus therefore would have to shift to the installation company or the product.
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You lot should listen to Mr Todd more. (You won't hear me say that often)
The RRFSO is based on the European Directives kindly shared with us by Tom Sutton.
A key snippet from those directives:
1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
2. Where, pursuant to Article 7 (3), an employer enlists competent external services or persons, this shall not discharge him from his responsibilities in this area.
3. The workers' obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.
4. This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.
Note the use of "shall" and "shall not".
So an employer always has an ultimate duty to protect their employees, regardless of persons enlisted to help. [4] makes a reference to due care, but this is in quite specific regards to exceptional/unusual/unforseeable circumstances, and only gives an option for member states to provide for the exclusion or limitation of employer's responsibility.
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Civvy
Technically speaking CT is correct, in H & S the government were forced to correct the "six-pack" c1997
However, we missed a bit ::) and were forced in 2002 ish to alter a bit more eg offering eyesight tests before commencing employment as a DSE User.
Close scrutiny would reveal not all of the Directives have been transcribed accurately, and early on some barristers have tried to bring cases citing this, but were told in no uncertain terms that EC Directives (themselves) have no legal standing
davo
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Thanks to all. So my original question still stands but in reverse.
What was the thinking behind article 33 in setting out a defence of due diligence that can only be used if the persons placed at risk are not your employees? I note your comments Speyside and Civvy and I am probaly not seeing the wood for the trees.The EU directives are all about employment and the options available to member states also refer to employers. But an RP who is not an employer, enjoys an additional defence of Due Diligence. Why was this thought to be necessary?
Civvy I always listen to Colin. At extraordinary great length sometimes ;)
But I think he sometimes expects us all in the business to have the instant recall for technical detail and history that he does. And personally I admit I dont.
Thats why I have been grubbing about in a filthy basement today looking at compartmentation and finding huge problems whilst he has been drinking tea from a china cup in the company of learned judges, politicians, civil servants et al.
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"But an RP who is not an employer, enjoys an additional defence of Due Diligence".
Perhaps this comes from the definition of a Responsible Person from the order. Yes the employer is a responsible person, but the person having control of the premises and the owner of the premises are also considered to be Responsible Persons.
So if we look at the old chestnut of multi occupied premises, the owner of the premises is considered to be a responsible person, as are the employers of the workforces in units within the premises. If the employer in charge of one of the units commits an offense, they can be prosecuted but the owner of the entire premises can also be prosecuted for the same offense as another responsible person. As I see it, in this case the owner of the premises as a responsible person should be able to use the defence of due diligence.
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That's how it sometimes used to work with fire certificates - the owner held that main certificate and the tenants sub-certificates.
Sometimes the owner would get a notice as well as the tenant even if the problem was in the tenants part of the certified premises and the owner would have to use the due diligence defence.
There was a big case in the late 90's on this principle at a shopping centre where several severe breaches were found in the shop units, EN's and prosecuted. The landlord via their agent as main certificate holder got stuck on for all these offences as well, despite them being inside tenanted areas. They tried a due diligence based appeal stating they only had control over common parts & had fire consultants regularly audit the site, but lost because the auditors did not go inside the shops.
As a result we started doing 'due diligence' inspections for fire certificate compliance which covered all parts of a multi-occ, not just common parts. Things were different in those days, really old fire alarm systems and minimal EL were the norm (& accepted) and the most common breach was failure to notify alterations to building layout that could affect MoE and get approval/updated plans, hand in hand with failure to hold a complete copy of the certificate on site (which made auditing it interesting!)
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On a point of accuracy Kurnal, while you were grovelling in a basement, I was doing inspecting officer training at the REAL Fire Services College in God's own country, amongst God's chosen people, whom he has blessed with a beautiful country and the most decent genuine people in the World, though so as not to show too much favouritism to his chosen ones, he landed them with lousy neighbours and the Rt Horrible Tony Blair and the odd character of Gordon Brown.
On your question, I keep telling you it is incredibly simple and I do not know how to make it simpler. A fundamental tenet of the EU Directives is that an empoyer is UNCONDITIONALLY responsible for the safety of his empoyees, so due diligence as a defence would not wash. The EU do not even think the UK should have so far as is reasonably practicable but the UK were bullish about that , even though the EU thought it was a qualification that conflicts with the strict liability of an employer.
This responsibility cannot be delegated away, transferred to a fire risk assessor regardless of whether he is registered, circumcised, baptised, glorified or cannonized. nor can it be sold on ebay, given away as a present, or put up for auction. It stays with the employer. Whether an EA chooses to prosecute the employer of course is up to them. They may decide to prosecute an Article 5(3) person instead or to prosecute the RP AND an Article 5(3) person. It probably depends which one got up the nose if the I/o in England, or, in Scotland, whom a properly qualified and very bright lawyer at the PF thinks it is appropriate to prosecute, taking public policy into account and not wishing , as has happened in the case of a large met F&RS in England, the cost of defending frivolous charges that are then dropped, being paid for by public funds (ie you and me).
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"....Whether an EA chooses to prosecute the employer of course is up to them. They may decide to prosecute an Article 5(3) person instead........ "
Thanks Colin. That puts it in perspective.
In such a case, the defence of due diligence could be exercised by the Article 5(3) person against whom action is being taken, even in the absence of a prosecution of the Employer. If employees were put at risk the Employer WOULD have had vicarious liability but there may be cases where there is insufficient evidence to support a prosecution of the employer, only the 5(3) person.
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On a point of accuracy Kurnal, while you were grovelling in a basement, I was doing inspecting officer training at the REAL Fire Services College in God's own country, amongst God's chosen people, whom he has blessed with a beautiful country and the most decent genuine people in the World, though so as not to show too much favouritism to his chosen ones, he landed them with lousy neighbours and the Rt Horrible Tony Blair and the odd character of Gordon Brown.
I think if I loved a place so much I would be living there. :)
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This article sheds some light on the whole issue of due diligence and the RRO
http://www.means-of-escape.com/press-releases/press57.aspx
Repatriation for Todd ………. top idea; voluntary or enforced just as good.
Where can I donate to the ‘send Todd to the outer Hebrides’ fund?
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I won't have my bestest friend in the whole world ever, Colin Todd, spoken about like that. It would be a great loss to his local talisker parlour, and gentleman's special interest club, if he were ever to be repatriated to his motherland.
Colin is quite correct that due dilligence is not a defence for an employer, and that the EA could pursue either the RP or the 5(3) chappie or both.
But that then raises a question. Why would the enforcing authority decide not to prosecute the RP as he suggested, and instead pursue the 5(3) personage?
Either it would be because the EA had a weak case against the RP, or, the EA were of the opinion that it would be unreasonable to prosecute the RP.
If you were to apply the letter of the law exactly, the EA shouldn't consider the latter, because due dilligence is no defence full stop.
By just pursuing the 5(3) person is the EA giving the RP the right to exercise an element of defacto due dilligence? And therefore is this business about due dilligence not being a defence actually a bit of a red herring, at the whim of the EA?
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What was the thinking behind article 33 in setting out a defence of due diligence that can only be used if the persons placed at risk are not your employees? I note your comments Speyside and Civvy and I am probably not seeing the wood for the trees.The EU directives are all about employment and the options available to member states also refer to employers. But an RP who is not an employer, enjoys an additional defence of Due Diligence. Why was this thought to be necessary?
The RR(FS)O was drafted with due consideration to the EEC directives and as they haven't petitioned the UK, then I would assume they have accepted the order unlike the workplace regs in 1998. When you prosecute anybody you use the RR(FS)O therefore the answer lies within that order and for me Art 33, 32(11), 8(1)(a)or 12 answers the question.
As for K,s above query I think the EEC directives answer that, when Europe shouts s**t we jump on the shovel unlike some of our European friends.
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I won't have my bestest friend in the whole world ever, Colin Todd, spoken about like that. It would be a great loss to his local talisker parlour, and gentleman's special interest club, if he were ever to be repatriated to his motherland.
Colin is quite correct that due dilligence is not a defence for an employer, and that the EA could pursue either the RP or the 5(3) chappie or both.
But that then raises a question. Why would the enforcing authority decide not to prosecute the RP as he suggested, and instead pursue the 5(3) personage?
Either it would be because the EA had a weak case against the RP, or, the EA were of the opinion that it would be unreasonable to prosecute the RP.
If you were to apply the letter of the law exactly, the EA shouldn't consider the latter, because due dilligence is no defence full stop.
By just pursuing the 5(3) person is the EA giving the RP the right to exercise an element of defacto due dilligence? And therefore is this business about due dilligence not being a defence actually a bit of a red herring, at the whim of the EA?
Good point well made. Its horses for courses though Im afraid!
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Thomas, It is well-known that Scots are all missionaries to the third world, so here I must stay for the benefit of the under-priveleged, though I tend to keep away from the fourth world, even though it did spawn the Beatles.
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Comarade in arms, Retty, you are correct-it is at the whim of the enforcing authority.
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Maybe so CT, but the only thing they did for me was to ruin one of my Mathew St boozers and I am also not a football fan. However I still like enough to still live there and not emigrate.
Anyway don't missionaries provide information/help for free somehow it doesn't sound like you.
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Sadly Thomas, I dont have a pension that allows me to be that altruistic, but then I am not old enough to collect one anyway.
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Many might argue that rather than bringing good news and enlightenment, history shows that missionaries are often sent by self serving organisations for their own self interest, seeking to impose their own beliefs and standards on other nations and tribes which previously have been living their lives peacefully in happy self contained and fulfilled communities.
Of course I hasten to add I would not dream of linking such an analogy to any Scotsman who prefers to live in England for our continued enlightenment and delight! ;D
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Colin forgive me, I am overcome with emotion regarding your dire financial situation however you look old enough for a pension or have you had a hard life. :'(
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Happily for you, Big Al, we scots are much more altruistic than the missionaries to whom you refer, so we invented many of the things that surround you in Big Al Towers.
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Yes I can confirm that Lord Todd is an altrusitic fellow...
Infact I'm sure he once promised to send me a case of his finest vintage Talisker, plucked from the well stocked wine cellars at Todd towers.
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Yes Midland. I believe inactons speak louder than words.
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Sorry to stray this thread further... but, aren't missionaries always laying down on the job? Also, from history lessons I remember, they too caused to effect rape & pillage!!! Evidence - vikings, romans, crusades...
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I can happily confirm St Todd is indeed a missionary, those socks would frighten any natives away ::)
davo