Article 18 - Safety Assistance - para(8)

[CivvyFSO]

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.

[kurnal]

You are just a paper tiger then Civvy.

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.

[Midland Retty]

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.

[nearlythere]

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.

[CivvyFSO]

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.

[tmprojects]

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?

[CivvyFSO]

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.