Requirement for written fire risk assessments

[PhilB]

If article 48 of the RRO disapplies the HASAWA and the Management Regs, which is my understanding, is it appropriate for us to keep quoting precedents and case Law decisions - such as the argument over 5 employees anywhere versus 5 at anyplace?

Kurnal article 47 not 48 quite rightly disapplies the HASAW Etc. Act IF the matters can be dealt with under the Order. This is to avoid dual enforcement. However the requirement to record the prescribed information is identical under both. Quite correctly in my opinion.

[BikerJohn]

OK I am back in, this thread started with the issue as to whether we needed to have a recorded FRA if the employer had one employee in shop 'A' but more employees aswell elsewhere. We then drifted off a bit but have now got back to the point.

Having just read the Order again i still believe the "Spirit" of this law is that if the "Responsible Person" employees 5 or more it has to be recorded AND those 5 should be in shop 'A'. My reasons for this are:

1) Article 9(1) states the "responsible Person" must carry out an FRA - Dont think anyone disagees with that?

2) Article 3 gives the meaning of the "Resposnible Person" and this may not be the employer and if it is the employer it says in 3(a) it is in relation to the workplace, further more if it is not the employer it is the person who has Control of the workplace, evrything revolves around the workplace not workplaces.

Thats it really i am not interested in other legislation my belief is that this is what this document is saying and i feel as a couple of others have said that it will take a legal test case to decide.

PhilB and others what do you think?

[PhilB]

John consider this. The HASAW Etc Act 1974 is still in force. The Management of Health & Safety at Work Regulations 1999 are made under that Act and contain the requirement for certain information to be recorded ."IF FIVE OR MORE PERSONS ARE EMPLOYED".

The Order has been in force since the 1st October as you know and also has a requirement for information to be recorded. It would make little sense to interpret the two pieces of law differently when the wording is identical in my opinion.

I dont personally think we can ignore other legislation.

You are correct that now it is the responsible person not only the employer who has to carry out the RA. However if there is no employer the problem we are discussing does not arise.

[jokar]

The Order is basically a Health and Safety document and as such will "borrow" from H&S case law.  Enshrined in that, is the principle of 5 or more employees aaaand that is taken on into this piece of legislation.  FPA Circular 28 which was the enforcers guidance under the WFPL stated the same and the draft of the enforcers guide under the Order copies this.

[PhilB]

And let's not forget that it is not just the significant findings that need to be recorded. Look at article 11, the fire safety arrangements must also be recorded.

That is why it is the number of persons employed and not the location they are employed in. More people, more planning, organisation, control, monitoring and review required.

Would you want a large organisation like BP or Shell to argue that not more than five are employed in each petrol station??? Surely not, you would expect them to have suitable management systems in place and to record them.

[BikerJohn]

Your Shell garage example is an interesting one. If you work on your principle, the Shell garage on one side of the street needs to record whereas the lone operator running a garage on the other side does not and yet there are still four employees in each garage, that just does not make sense to me.  I believe the principle rotates around the level of occupancy.  If you start having more people employed in a single location you worry that they may not all know the problems in the place and what the emergency plan is hence you record it so that consistency of message gets round to all staff.  After all, this is all about looking after the employees safety (and any others  blah blah) so why would you have more robust systems in your Shell garage than my lone operator?

I hear what you are saying about H&S legislation BUT until this legislation gets sounded out in court i think you are wrong to say MUST.

I think we should leave it there as we are obviously not going to agree but it has been good to hear what you and others think.

[jokar]

John, last bit, no one has died for the lack of a document.  However, the fact that they have bothered to have one makes you think that they are in a better position.  My question is what will the insurers do afetr an incident?

[BikerJohn]

Now there i totally agree with you, i have said to clients you may not need to record your FRA BUT how are you going to demonstrate you have done one and there really is only one way.

[Ken Taylor]

OK so we haven't seen the case law or had more explicit guidance on this specific aspect of the RRO - but the identical approach to that in general H&S law regarding risk assessment seems to be far more than coincidence and we would be well advised at this time to follow the HSE's view of the meaning of '5 or more employees' than to hope that a different interpretation will be applied here - at the risk of being in breach of legislation which to many is clear in its intention and meaning in this respect.

[Mike Buckley]

Watchout for the other aspect that is hitting the Health and Saefty side and that is civil litigation. I am waiting for the first case where a company is sued because of a fire loss and they cannot prove that they carried out a FRA.

Remember the Sam Goldwynism " A verbal contract isn't worth the paper its written on"

[messy]

Ken

When you say "writing more BS"

I assume you mean British Standards rather than buls**t (or do you???)

[Tom Sutton]

I  mailed the DCLG  the following question.
If an employer (RP) has five or more separate workplaces each employing 1 employee is he/she required to record the significant findings (sect 6) of the FRA.

The following was thier reply.
The employer (the responisble person) must carry  out a fire risk assessment for all the seperate workplaces that he has control of if they are not part of the same premises; he will need to record the significant findings.

[Pip]

Your Shell garage example is an interesting one. If you work on your principle, the Shell garage on one side of the street needs to record whereas the lone operator running a garage on the other side does not and yet there are still four employees in each garage, that just does not make sense to me.  I believe the principle rotates around the level of occupancy.  If you start having more people employed in a single location you worry that they may not all know the problems in the place and what the emergency plan is hence you record it so that consistency of message gets round to all staff.  After all, this is all about looking after the employees safety (and any others  blah blah) so why would you have more robust systems in your Shell garage than my lone operator?

I hear what you are saying about H&S legislation BUT until this legislation gets sounded out in court i think you are wrong to say MUST.

I think we should leave it there as we are obviously not going to agree but it has been good to hear what you and others think.

You have to factor in Public perception/expectation, because they do have an influence on a decision a magistrate /judge will make, in regards to application of the law.

[fred]

The significant findings are clearly a lot more than a list of defects.

I have to agree with PhilB on this one - nice piece Phil,  however it leaves the Inspecting / Enforcing Officer and Enforcing Authorities in a bit of a predicament.

The obvious way to determine if a fire risk assessment is "Suitable and Sufficient" is if a nice big list of "Significant Findings" has been recorded (or drawn on a plan) - and the only way to determine if the list of "Significant Findings" (or the plan)  is correct is to carry out a full and thorough inspection of the premises.

The inspector carries out the inspection and tells the RP what he's missed and what he needs to do to put it right.  Goodbye 5(4) Notice - hello Enforcement Notice.

So much for self compliance .... or am I missing something ?

[Mike Buckley]

Bear in mind that the significant findings are not just the faults, but the proper measures as well, so that fire extinguishers properly mounted and in  the correct position is a significant finding as well as not enough fire extinguishers provided.

However I can see conflict coming up as an RP, especially if they have hired or employed an expert arguing, with an inspecting officer over the risk assessment. Alternatively what is the position of the expert if having done a risk assessment the IO disagrees and lands an enforcement notice?

The IOs have lost the protection of the FPA and the 1952 Fire Services Bluff Act!