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THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: tmprojects on February 16, 2011, 12:59:57 AM
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To start, I should say i already have firm views on this.
Lets say a very big company employs, as part of their staff, a national fire advisor and regional fire advisors to satisfy 18(1)
The national staff devise the policies, the training programmes and FRA format. The regional advisors implement them.
Now lets say the company decides to streamline things, they decide they are going to allocate all of these responsibilities to a facilities management company as part of a new contract, and subsequently make redundant the existing staff.
would you say they are contravening article 18(8 )?
what if they keep the national advisors and replace the regional advisors with staff from the contractor?
are they still contravening 18(8 )?
i think they are....
18 (1) says appoint one or more CP to assist.
18(8 ) says where there is a CP in the RP's employment, that person must be appointed in preference to a CP not in their employment.
that says to me it applies to all CP's required under 18(1)
my understanding of the spirit of 18(8 ) is that who best to understand the companies needs, requirements and impact on fire safety than experienced employees. any contractor is less likely to understand them.
Also, if the company is large enough, they could not argue against their ability to comply with 18(8 ) isn't it really reserved for smaller companies who cannot.
now that i have sufficiently load the question with my point of view, what are your thoughts?
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Whether there is a direct employee or contracted employee, a duty of care still exists via the contract. If an individual as an employee, felt agrieved at the employer taking on a contractor, there may be need of proof as to competancy of that agrieved employee. Then there may be a case to bring.
But, me thinks, you may wish to look for a proper level of legal advice, as there appears to be more than your few lines above to your question.
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18(8 ) says where there is a CP in the RP's employment, that person must be appointed in preference to a CP not in their employment.
Pardon a clumsy intervention, but I guess your point is a non starter, because if the employer is determined to restructure and bring in a an outside contractor all he has to do is to terminate the contracts of employment of his staff then he doesn't employ anybody competent anymore? Note that the Law does not say he Must employ someone. it says WHERE he employs someone.
If I were in such a hypothetical situation I would take a close look at the record and work done by such a contractor and would probably find evidence that it is far inferior and wholesome and lack the continuity of support of that carried out by the in house team. But if the Employer is seeking revenge for something he wont listen anyway. Am I wide of the mark?
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I agree with Kurnal.
There is the other scenario where they keep the national advisors, and by keeping them I would still say they have complied with article 18 as they have people nominated to assist with the preventative and ptrotective measures. This does not remove them from their responsibility to have someone competent in running a premises with regards the day-to-day running of fire safety, but that becomes more of simply a training issue. i.e. If the local managers are not competent in fire safety the failure is in training, not in the safety assistance area.
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There is another angle on this, if the employer is transferring the responsibility to a facilities management company then he cannot make the staff redundent as redundency can only occur if the function is no longer required. For example if I was employed to sell widgets and the company stopped suppling widgets then I could be made redundent.
However if the function is being transferred to a FMC the roles still exist. As such the existing staff are covered by the TUPE legislation and should be TUPEd over to the FMC.
This may not help as although the staff may be TUPEd over there is nothing to stop the FMC deciding that they have too many fire risk staff and then bringing in redundency.
Again seek legal advice because not only is fire legislation involved but employment legislation is as well.
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18(8 ) says where there is a CP in the RP's employment, that person must be appointed in preference to a CP not in their employment.
Pardon a clumsy intervention, but I guess your point is a non starter, because if the employer is determined to restructure and bring in a an outside contractor all he has to do is to terminate the contracts of employment of his staff then he doesn't employ anybody competent anymore? Note that the Law does not say he Must employ someone. it says WHERE he employs someone.
this is exactly what my question is! if an employer took on a contract to encompass the CP role, and that contract resulted in the employee who fullfilled that role being displaced. would you consider it a contravention of 18(8)
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No I dont think there needs to be a contravention of Art 18, it is not the intention of the Order to dictate how an Employers should manage their business. But as Mike said employment legislation may give the staff some protection.
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Where there is a competent person in the responsible person's employment, that person must be appointed for the purposes of paragraph (1) in preference to a competent person not in his employment.
The area highlighted doesn't seem to give the RP any choice, which is the point I think tmprojects is making.
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But if he has been made redundant then he is not in employment any longer and then they can appoint some one else. This was all about not having the RR(FS)O as a consultants charter.
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tm
I think the point you are making is-
Can the employer make his CPs redundant ???
In the case of a large multi-sited company I guess that as long as they employ one person somewhere then they comply, I don't think it is for the FRS to tell them how many are needed :-X
I would imagine that person could well oversee the FMC people
davo
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But if he has been made redundant then he is not in employment any longer and then they can appoint some one else. This was all about not having the RR(FS)O as a consultants charter.
Absolutely, I think this is were the the employment legislation needs to be considered also the RP could claim they was not fully competent but this would be difficult to prove considering they has been employed in this capacity.
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Where there is a competent person in the responsible person's employment, that person must be appointed for the purposes of paragraph (1) in preference to a competent person not in his employment.
I feel the general drift of this would be that if the RP has a competent person on his staff he must use them in preference to someone not in his employ. However it does not say that the RP cannot get rid of the competent person that would be amount to giving a competent person a job for life. If the RP decides that it is more efficient/economic to employ an outside company as a competent person, he can then TUPE the competent person in his employ over to the outside company. The RP has ticked the boxes he has the use of a competent person, it is up to the outside company to decide how best to satisfy the needs of the contract. The only comeback the RP would have is if the outside company does not provide an adequate service, then the RP would have to ensure he has the advice of a competent person in which ever way he chooses.
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for your interest. we have sought legal advice on this (sure, unless determined in court its just an opinion). will let you know what the legal beagles think.
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sorry to disappoint you all, and I'm sure youll be unsurprised to hear, the legal beagles have not answered on this.
But for the love of a good debate! Think there's more to discuss.
(article 18 (8 ) Where there is a competent person in the responsible person’s employment, that person must be appointed for the purposes of paragraph (1) in preference to a competent person not in his employment.
Jokar. Are you saying by sacking the CP you are free to appoint anyone because no one is in your employment because you sacked them thus there is no contravention?
Surely at the point the assessment was made by the RP, he was aware he had someone competent for the job in his employ, therefore (article 18 (8 ) must apply shouldn't it?
Regardless if he reduces them from ten staff to one.
if they have appointed an employee within the role of CP then they acknowledge they are competent. to then sack/ make redundant all of them for the sole purpose of discharging the duties of CP to a contractor must be in contravention of the above? surely?
I couldnt imagine a court would accept that to sack a CP in your employ, then employ a contractor, is not a contravention of this article!
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Terence, the hiring and firing of employees is not governed by the narrow issue of the FSO. There is nothing to stop someone getting rid of in-house expertise and buying it in.
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A contravention of the RRFSO would indicate that we, as the enforcing authority could ensure that the article is complied with through enforcement. We wouldn't have an offence unless relevant persons were being put at risk due to no CP being in place. We could try to enforce the matter, but only if no CP was appointed.
All an enforcement notice could say would be that the RP must appoint a person for safety assistance purposes, and if there is a competent person in the RPs employment then they must be appointed. Problem is, if we issued a notice, there will be at that time no CP within the RP's employment, therefore we would have to accept any other competent person appointed.
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You are just a paper tiger then Civvy. ;D
It makes one wonder why it was put in the Order if it cannot be enforced. Was it just an anti consultant thing?
I cant see any fire service being interested in enforcing it in any case. And they certainly would not place any presure on an RP not to make anyone redundant on the strength of it.
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Dont forget paragraph 8 states : - "Where there is a competent person in the responsible person's employment, that person must be appointed for the purposes of paragraph 1 in preference to a competent person not in his employment"
So in reality why would you spend extra to get in a consultant if you are either :-
a) directly employing your own fire safety adviser or
b) employing a person already undertaking a primary role within your company given additional responsibilities to assist you (afterall its not costing you anymore money)
There may be instances when your own CP was not competent enough in a certain key area (lets say you want to install a sprinkler system, your own bod is clued up on most fire safety issues but doesn't possess enough technical knowledge on sprinkies- so you buy in the expertise for that particular item)
Does that paragraph exist to try and prevent employers from making their own bods redundant and buying services in simply because it is cheaper? Is it trying to suggest that employers can excercise more control of direct employees, (continuity and support)? Is it to prevent unscrupulous employers from firing, or getting rid of employees who whistle blow or say something about the safety regime the employer doesn't want to hear or implement. I don't know.
What is for sure is that the article couldn't be enforced.
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What the employer considers a Competent Person to be is purely subjective. If challenged all the employer has to say is that in his opinion he does not employ a person he considers to be competent in fire safety matters. The legislation does not require him to employ such as person.
If the employer was forced by a notice to appoint a competent person then it would be up to the EA to advise him as to who it considers "competent". All the employer has to say is that he does not employ anyone he considers competent.
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I agree with you Kurnal. I cannot see that, providing suitable precautions were in place and the risk assessment was suitable etc, any FRS would enforce the appointment of a different person to offer safety assistance.
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I have many points to make on the responses.
I should say a CP could easily show they were competent by showing their work prior to removal. So a RP saying they weren't would be easily challengeable.
An enforcement notice can be served if the RP has FAILED TO COMPLY with any provision of this order.
If he gets rid of staff and puts in contractors has he not failed to comply?
Failure to comply with 8 to 22 is, as said, only an offence when the failure places relevant persons at risk of death or serious injury.
BUT.
(d) says, it is an offence to fail to comply with an EN. There is no duty here to show risk of death or serious injury.
Can it be enforced? Let's say an employee alleges to the FB that he has just been sacked and he believes it is in contravention of article 18. If an allegation is made then the FB is duty bound to investigate. If they establish in the audit he was competent do the FB then have grounds to issue an enforcement notice?
my view is an EN can be issued under article 18 if they knowingly remove employed staff for contractors. The competence of the contractor has no bearing to the compliance of this article. Only the employees competence needs to be demonstrated. But it would only become an offence, if they failed to comply with the EN.
I'm not saying for a second it would be easy, and recognise in some circumstances nigh on impossible to enforce. My point has always been that it could be enforceable.
To put another spin on it. And I really don't know on this.
Could the employee refer to this article in a employment tribunal? would it have any legal weight in that arena?
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As soon as he gets rid of the employee he no longer has an employee to appoint as the safety assistant.
Q. Have you appointed someone to assist you under article 18?
A. Yes.
Q. Who is it?
A. A management company.
Q. Do you employ anyone competent to perform that role?
A. No.
If you removed a fire alarm system in favour of gongs even though a full fire alarm was required, we would not issue an enforcement notice forcing you to bring back to old system, we would issue one for not having a suitable fire alarm and tell you to install a suitable fire alarm system. We are interested in the conditions which are found, not how someone ended up at those conditions.