Breach & Offence

[Tadees]

Is there such a distinction under the fire safety order?  What if a wedged fire door does not place relevant persons at risk of death or serious injury?  Is this merely a breach?

[johno67]

Article 5 states the Duties under the Order - i.e Responsible Person must comply with duties imposed by Articles 8 - 22 etc.

If they are not complying with any of these duties then it is 'non-compliance' with the Order (or a breach of the Order - a term also used by Prof Rosemary Everton - top expert in these matters & a lovely Lady).

It only becomes an offence if it complies with the criteria laid out in Article 32.

So in your example of the fire door, if it is not an offence it is still non-compliance (a breach of the Order) and the Responsible Person still has to address it. If they don't or won't then the Inspecting Officer could ultimately serve an Enforcement Notice (Article 30) to require it. If they didn't comply with that Enforcement Notice then they would be committing an offence under Article 32(1)(d).

However the fire door being propped open could ultimately be an offence under Article 32(1)(a) if it was putting one or more Relevant Persons at risk of death or serious injury in case of fire.

Hope that makes it a bit clearer (and I hope it's right, I'll soon find out if it's not I'm sure)

In my opinion only as always.

[PhilB]

Article 5 states the Duties under the Order - i.e Responsible Person must comply with duties imposed by Articles 8 - 22 etc.

If they are not complying with any of these duties then it is 'non-compliance' with the Order (or a breach of the Order - a term also used by Prof Rosemary Everton - top expert in these matters & a lovely Lady).

It only becomes an offence if it complies with the criteria laid out in Article 32.

So in your example of the fire door, if it is not an offence it is still non-compliance (a breach of the Order) and the Responsible Person still has to address it. If they don't or won't then the Inspecting Officer could ultimately serve an Enforcement Notice (Article 30) to require it. If they didn't comply with that Enforcement Notice then they would be committing an offence under Article 32(1)(d).

However the fire door being propped open could ultimately be an offence under Article 32(1)(a) if it was putting one or more Relevant Persons at risk of death or serious injury in case of fire.

Hope that makes it a bit clearer (and I hope it's right, I'll soon find out if it's not I'm sure)

In my opinion only as always.

Spot on John...Good Egg!!

[Neil G]

So in your example of the fire door, if it is not an offence it is still non-compliance (a breach of the Order) and the Responsible Person still has to address it. If they don't or won't then the Inspecting Officer could ultimately serve an Enforcement Notice (Article 30) to require it. If they didn't comply with that Enforcement Notice then they would be committing an offence under Article 32(1)(d).

Well answered Neil, although this is technically correct (and being in a pedantic mood at this time of night) when you consider that an enforcement notice must be a minimum of 28 days it begs the question why would you give someone 28 days to shut a fire door!

If you also consider that most fire doors protect escape routes then a wedged open fire door may NOT be protecting that escape route; therefore, would smoke from a fire (which kills most people) put relevant persons at risk of death or serious injury in the event of a fire? If so then it would still be an offence, but now and not in 4 weeks time?

[johno67]

A fair point Neil, well made (even after a few beers (or red wine is it?)

I think that the enforcement notice would only be likely to be served as a result of continuous none compliance. Although I couldn't envisage it getting to that stage, if you follow enforcement through the logical process you would end up at an Enforcement Notice by default.

Two different scenarios:

1. Two fire doors leading from a room onto seperate escape routes in a normal/low risk building. If this room is mirrored on each floor, then by wedging a fire door open onto one of the escape routes only, would people be put at risk of death or serious injury in case of fire? I'd say probably not, as a fire is unlikely to start in the first place and if it does then they have an alternative escape route that they can use.

2. A single fire door protecting a single wooden staircase at ground floor level in an anorak factory, where they are using open flame heaters on the ground floor to keep the place warm in the winter i.e. high risk. If this door was wedged open, then in the event of a fire (which is much more likely due to the conditions) would it place relevant persons at risk of death or serious injury from fire? Absolutely!

1 - non compliance (a breach), 2 - non compliance (a breach) and also an offence. As always in my opinion.

A question for you in return. If you were to enforce this particular example i.e. the fire door being wedged open, which Article of the FSO would use?

(A 10 year old Macallan single malt in my case)

[PhilB]

Good points Neil and John.

I do think this is an area that many do not fully understand.

Under the 71 Act if you found a locked fire exit or a wedged open fire door the owner/occ was guilty of an offence, as simple as that. Provided of course that the door was a requirement of the certificate and the building was being used for the purpose that it was certifcated for.

Now if an inspector finds such a contravention he would need to be satisfied that the wedged/locked door had placed persons at risk of death or serious injury....and that is not often going to be very easy to do.

You may not give someone 28 days to shut a fire door Neil but you may give them 28 days to improve their management systems.

Which article is being contravened if a fire door is wedged open???

In my opinion article 8.1 because the responsible person has failed to take general fire precations by his failure to comply with article 14 1(b) because in the event of danger i.e. a fire in the room, it may not be possible for persons to evacuate the premises as quickly and as safely as possible if smoke and heat from the room is affecting the escape route.

[jokar]

Can I take it back to the first fire door bit.  It may be non compliance it may not.  It depends on the FRA and the outcomes of that document.  A risk anaylsis is exactly that.  A hazard may be present that presents a risk but the RP may be prepared to live with it, do not forget Alarp and that the Onus is on the RP not an enforcer.  As regards offences it is far easier to discharge the enforcement function afet an incident because of the reactive nature of the legislation than to do it before.  Proving that an area of non complaince places a person at risk of death or serious injury is not easy before a event has taken place but much easiervafter.  hence the differnec in fines and costs.

[Nearlybaldandgrey]

Sounds like a good time to mention Article 23 General Duties of Employees at work ......

23.—( 1) Every employee must, while at work—

(a) take reasonable care for the safety of himself and of other relevant persons who may be affected by his acts or omissions 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; and

(c) inform his employer or any other employee with specific responsibility for the safety of his fellow employees—

(i) of any work situation which a person with the first-mentioned employee's training and instruction would reasonably consider represented a serious and immediate danger to safety; and

(ii) of any matter which a person with the first-mentioned employee's training and instruction would reasonably consider represented a shortcoming in the employer's protection arrangements for safety, in so far as that situation or matter either affects the safety of that first-mentioned employee or arises out of or in connection with his own activities at work, and has not previously been reported to his employer or to any other employee of that employer in accordance with this sub-paragraph.

Surely if the responsible person makes the employees aware, through evidenced regular training, the employee commits the breach and subsequent offence?

[Neil G]

Surely if the responsible person makes the employees aware, through evidenced regular training, the employee commits the breach and subsequent offence?

Yes I agree, even to the point that action could be taken against an employee who fails to comply with the safety instruction of their employer; e.g. ignored a 'Fire Door Keep Shut' sign (but seriously would we? a good telling off maybe, but getting the evidence?)

The main question is "where is the management?" Wedged open fire doors do not just occur immediately before either a fire or an inspection (audit); they are ongoing problems because a fire door with self closer causes someone a problem. Therefore wedged open fire doors should be addressed by the FRA, article 11 and general day to day management.

I suggest that a wedged open fire door is indicative of poor management and many breaches of the FSO could be easily identified. An offence under article 32 (1) a...or just an indication that greater scrutiny is required? I'm sure that fire IOs are just like other law enforcers - a cursory glance around and if an obvious breach stands out start digging...


(Johno - at this time of night a 12 y.o. doublewood Balvenie)

[Davo]

Gents

We are missing the point here.
Its a fire door.
Either the certificate said so or the Risk Assessor said so.
Ergo propping it open is placing persons at risk
Voila!

[PhilB]

No Davo I have to disagree.

Fire doors are frequently used where they are not required, e.g. many office corridors with escape in two directions will have fire doors opening onto corridor often because the architect wants robust doors that will last.

There may be no persons in the building or in that particular area at that particular time when the door is wedged, how would you prove to a Court that persons were placed at risk of death or serious injury???

[Midland Retty]

No Davo I have to disagree.

Fire doors are frequently used where they are not required, e.g. many office corridors with escape in two directions will have fire doors opening onto corridor often because the architect wants robust doors that will last.

There may be no persons in the building or in that particular area at that particular time when the door is wedged, how would you prove to a Court that persons were placed at risk of death or serious injury???

Absolutely right Phil

Someone asked "why give someone 28 days to comply by way of an enforcement notice".

An inspecting officer / fire officer has to be 110% sure that lives are being or will iminently be put at risk of serious injury or death or the prohibition notice or prosecution will be easily challenged with sometimes heavy financial implications for the fire authority concerned.

An enforcement notice is a shot across the bow in a sense - failure to comply is an offence - simple as that.

I nearly prohibited the use of a restaurant the other day as the travel distance from the basement seating area was excessive and the fire exit was locked.

But because no one was eating down there at the time a clever barrister would argue no one was being put at risk at the time of my visit.

Its a very tricky issue.

[Mike Buckley]

Midland Retty

I can see the point, the way round it for the owner would be that he has carried out his risk assessment and the hazard of keeping the door unlocked (security etc.) is greater when the a basement is unoccupied than the hazard to people trying to escape from a fire. What is needed is a record of this in the Risk Assessment and an operating instruction to the staff that the door must be unlocked before people are allowed to eat down there.

If these are available then the owner has addressed his responsibities, if not then you could argue that his FRA is inadequate and proceed from there.

At the end of the day rightly or wrongly the emphasis has been passed onto the responsible person and however frustrating it may be we have to accept this.

The unfortunate aspect is that should a fire break out and people are affected that is when law descends like a tonne of the proverbial, which is of little consolation to the victims until they go to litigation.

[nearlythere]

The issue of a dangerous condition warranting prohibition or closure would be very difficult to show. An excessive travel distance is not dangerous. A locked fire exit, unless it is the only way out, is not dangerous. And if it is the only way out how did people get in?
From my experience a dangerous condition exists when the risk to a person or persons is significant and likely to happen.
Even if people are in a building or part of a building served by a staircase which had a protecting fire door wedged open it would be difficult to show that a dangerous condition exists.
There are many cases where F&R Services have issued notices where excessive travel distances exist or where protecting FR doors are missing a self closer for example and are given months to comply. In the interim the premises can still operate.

[terry martin]

Surely if the responsible person makes the employees aware, through evidenced regular training, the employee commits the breach and subsequent offence?

Yes I agree, even to the point that action could be taken against an employee who fails to comply with the safety instruction of their employer; e.g. ignored a 'Fire Door Keep Shut' sign (but seriously would we? a good telling off maybe, but getting the evidence?)

The main question is "where is the management?" Wedged open fire doors do not just occur immediately before either a fire or an inspection (audit); they are ongoing problems because a fire door with self closer causes someone a problem. Therefore wedged open fire doors should be addressed by the FRA, article 11 and general day to day management.

We would not really serve an enforcement notice on the employee (although theoretically we could), if there was an issue with employees we should serve the notice to the RP, and the management should then deal with the employee through their own discipline procedures. On the other hand, if this was reactive (e.g. after a fire) then we could prosecute the employee under article 23 if his actions directly resulted in placing relevant persons at risk