Should FAs prosecute those who have failed to carry out a FRA?

[Dave H]

Changing the subject slightly; what about insurance.

If a company fails to carry out a FRA or does not act upon any significant findings resulting from a FRA, could this invalidate their insurance in the event of a fire?

[Chris Houston]

On what basis are enforcement notices served?

[AnthonyB]

The Management of Health and Safety at Work Regulations 1999

Risk assessment
     3.  - (1) Every employer shall make a suitable and sufficient assessment of -

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997


Therefore if you do not carry out an assessment that would in content be amazingly similar to what we call an FRA you are in breach of Regulation 3 of MHSWR '99, which is an offense (as many companies who breach H&S regs have found out as if they have no suitable RA then they will get stuck for that as well as the breaches of the specific regs involved in the accident)

[Chris Houston]

Changing the subject slightly; what about insurance.

If a company fails to carry out a FRA or does not act upon any significant findings resulting from a FRA, could this invalidate their insurance in the event of a fire?

Only if undertaking a FRA was a warranty of the insurance policy, or made a requirement in some way.  Even then, I think the insurance company would still have to prove they were jeapordised by the failure.

My comments relate to property insurance.  I think it's just about impossible to avoid paying out for employers liability (i.e. insurance to cover employees injury or death) insurance.

That said, insurance companies do see this is a key indicator of good risk management.  And they are most likely to tell the cusomter to do one following an inspection.

[colin todd]

Chris, an enforcement notice can be served for any breach of the Workplace Fire precautions Legislation. Many fire authortities rarely issue these though, preferring the new softly softly approach that is more in keeping with the enforcement concordat and is arguably a better way to get things done. Other fire authorities still have officers who are more gung ho (are you listening Messy?).

[Ken Taylor]

Unless immediate action is essential, isn't the best route usually:

1. Persuasion; then if no compliance,
2. Enforcement notice; then if no compliance,
3. Prosecution.

ie as in the 'health and safety at work' realm?

[colin todd]

Yup.

[messy]

Unless immediate action is essential, isn't the best route usually:

1. Persuasion; then if no compliance,
2. Enforcement notice; then if no compliance,
3. Prosecution.

ie as in the 'health and safety at work' realm?

That has been my thinking for years. However, it's quite evident that 100s of thousands of employers are ignoring their responsibilities. THE WPR are simply not working

Whilst I accept that it's not the FA's job to make a badly written law work, I also feel that when you get high profile companies (like major breweries - some of your mates Colin!) ignoring the regs, perhaps a zero tolerance approach would send a clearer message than the touchy feely tree hugging approach at present.

Gun Ho? Perhaps, but as I have said, 8 years on 90% of punters are still not playing ball.  What other option is there?

[steve walker]

Some companys might just wait until the fire brigade comes to give them some free advice on how to comply with the regulations (an enforcement notice). It would save them paying expensive consultancy fees.

Steve

[PhilB]

Failure to carry out a risk assessment is not an offence under the Workplace Fire Precautions Legislation unless that failure has splaced one or more employees at risk of death or serious injury.( Reg 11 of FP(WP)Regs 97 (As Amended).

Failure to carry out a risk assessment is an offence under the HASAW Act Sec 33(c) because the MHSW Regs are relevant stautory provisions. The HSE, but not Fire Authorities, could prosecute under the HASAW Act.

Fire Authorities could serve an enforcement notice requiring an assessment to be made, failure to comply with the notice would be an offence but I don't beleive that would be reasonable if there were no other failures!

The RRO will not change things, have a look at Article 32 and you will see that it will only be an offence to comply with the requirements if that failure places relevant persons at risk of death or serious injury.

[wee brian]

Thats the big "IF". Under the RRO you can only be prosecuted if you failure puts people at risk So why should anybody bother doing a risk assessment, Just wait for the Fire Service to turn up, they will tell you what to do then.

[PhilB]

Not quite Wee Brian!!....it will also be an offence to contravene a requirement of an enforcement notice..so the situation will be the same, if no risk asssessment an enforcement notice requiring one could be served, failure to comply would be an offence. Fire Authorities will not have the time or resources to tell the responsible person what to do...employ a competent consultant if necessary, I know a few!

[wee brian]

That's my point phil. A business man can happily ignore all of this stuff until he gets a visit from the Brigade.

[colin todd]

Wee B, as always, is right. (He must have been in private sector mode when he wrote it.) If there is nothing dramatically wrong with a workplace, people would be immune from prosecution purely for not carrying out an FRA until such time as the fire authority come along and tell them to do one. Then, they will have at least 3 weeks in which to do one. Indeed, we used to have a client that were well aware of this anomaily in the WFPL. We had a programme to do all their fire risk assessments of an estate of over 2000 properties over a 3 year period, with an arrangement that, if they got an enforecement notice requiring an FRA, we would divert and make sure they had it within 3 weeks. This arrangement was put into action on numerous occasions.

[Chris Houston]

Wee B, as always, is right. (He must have been in private sector mode when he wrote it.) If there is nothing dramatically wrong with a workplace, people would be immune from prosecution purely for not carrying out an FRA until such time as the fire authority come along and tell them to do one. Then, they will have at least 3 weeks in which to do one. Indeed, we used to have a client that were well aware of this anomaily in the WFPL. We had a programme to do all their fire risk assessments of an estate of over 2000 properties over a 3 year period, with an arrangement that, if they got an enforecement notice requiring an FRA, we would divert and make sure they had it within 3 weeks. This arrangement was put into action on numerous occasions.

What was the view of their property insurer of this arrangement?