Offences and Defences- the defence of Due Diligence.

[kurnal]

Article 33 provides a defendant with a defence of due diligence ie it is open to the person charged with an offence under the Order to prove he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.

The defence of due diligence does not, however, apply where the responsible person is alleged to have failed to have taken such general fire precautions as will ensure the safety of his employees, or to have failed to eliminate or reduce the risk from a dangerous substance present on the premises. Nor does the defence apply to an employer where failure to comply with the provisions of the Order is due to an act or default of his employees or appointed competent persons.

1- Why was it considered necessary to limit the due diligence defence in this way? Is it because it would undermine or conflict with other legislation in some way? Or were there other reasons behind it i.e. the European Directives?

2- Do you think the absence of such a defence applicable to Employers strengthens or weakens the case for third party accreditation of fire risk assessors and other contractors?

[Mike Buckley]

My immediate feelings are that in 1. These areas will overlap with other legislation such as the Health and Safety at Work Act for the general fire precautions and the Control of Substances Hazardous to Health regs for the dangerous substances.

As far as 2. goes I think this moves the onus for requiring third party accrediation away from the government and straight into the hands of industry. I feel the government is loath to turn round and say employers can only use the services of an accredited person as it would be seen as a restriction on free trade.

I also see it as an attempt to close loopholes that might be exploited by some of the less scrupuless employers. We all know that there are employers who will ignore the law until it bites them and then try to find every excuse to get off.

[Tom Sutton]

For item 1 check out RR(FS)O Article 32(11) may be relevant?

[kurnal]

Yes I agree Tom but what is the logic of allowing a defence of due diligence in some cases and not others?

Mike I think I agree with you but am also mindful of Article 47?

[Tom Sutton]

(11) Nothing in this Order operates so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of -

    (a) an employee of his; or
    (b) a person nominated under articles 13(3)(b) or 15(1) or appointed under 18(1).

The way I read it is the employer cannot use the contravention of any act by an employee, which includes competent persons, as a defence, which would include due diligence, the reason I suspect is vicarious liability. However the employee could be prosecuted under 32(2)

http://www.lawteacher.net/tort-law/lecture-notes/vicarious-liability-lecture.php

[kurnal]

Tom Thankyou.
As I see it this answers the second sentence of the guidance:

Nor does the defence apply to an employer where failure to comply with the provisions of the Order is due to an act or default of his employees or appointed competent persons.

The appointment of a fire consultant to carry out a fire risk assessment will be a contract for service. The employer will remain liable, quoting from the Lawteacher website
"An employer will usually be liable for (a) wrongful acts which are actually authorised by him, and for (b) acts which are wrongful ways of doing something authorised by the employer, even if the acts themselves were expressly forbidden by the employer (Salmond & Heuston on the Law of Torts, 1996, p443)."

Hoowever why should it be necessary to specifically re-iterate in the Order an accepted principle that has been universally applied elsewhere?

This still leave the first element unanswered:
"The defence of due diligence does not, however, apply where the responsible person is alleged to have failed to have taken such general fire precautions as will ensure the safety of his employees, or to have failed to eliminate or reduce the risk from a dangerous substance present on the premises."

Or am I still missing something? Why is is it necessary to create the defence of due diligence and then remove it if the persons at risk are employees? Perhaps I am misinterpreting the intent of the Order.

[Mike Buckley]

"Disapplication of the Health and Safety at Work etc. Act 1974 in relation to general fire precautions

47.—(1) Subject to paragraph (2), the Health and Safety at Work etc. Act 1974(1) and any regulations made under that Act shall not apply to premises to which this Order applies, in so far as that Act or any regulations made under it relate to any matter in relation to which requirements are or could be imposed by or under this Order.

(2) Paragraph (1) does not apply—

(a)where the enforcing authority is also the enforcing authority within the meaning of the Health and Safety at Work etc Act 1974(2);

(b)in relation to the Control of Major Accident Hazards Regulations 1999(3)."

The way I read this is that in the case of fire safety, the fire authority has greater authority than the HSE. The give away is Paragraph 2 (a) where the enforcing authority enforces both Fire Safety and Health and Safety.

It is also interesting that the COMAH Regs outweigh the FSO.

[kurnal]

Thanks Mike. But I dont agree that the Fire Authority have greater authority than the HSE. Both have responsibility for the enforcement of the Order in certain situations (article 25) and I suggest equal authority under the Order.

But the Fire Authority are not responsible for the enforcement of most of the general H&S Legislation and Regulations so article 47 makes it clear in case of any legal overlap  that where the Fire Authority is responsible for enforcement  that the Fire Safety Order over rides any other H&S legislation in respect of fire matters. Otherwise RPs might pick and mix which bits of the general H&S and Fire legislation and guidance suited them in their defence.

But where the H&S are responsible for enforcement they can pick the legislation that best suits their own needs. For example in this case last week,

http://www.hse.gov.uk/press/2010/coi-nw-47musicbox.htm

Instead of using the Fire Safety Order the HSE brought the prosecuton under the CDM Regs.
(But this was a building with multiple occupiers so it is unclear why the Fire Authority were not involved as they would appear to be the enforcing Authority under the Fire Safety Order)

[Mike Buckley]

Yes I agree it should have been the legislation not the authority.

With regard to the prosecution you mentioned, the non involvement of the fire authority also struck me. However there is one area which might explain it. The HSE has the power to take action to remove a source of danger where I do not believe the Fire Authority has that. Given that the HSE may have used CDM as it felt itself on firmer ground than using the FSO.

An example I heard of in Health and Safety occured in a factory where a HSE Inspector came into the factory and saw a machine that was standing on one side. He immediately condemned the machine and made arrangements for the machine to be removed from the factory. He informed the factory owner who commented "Thank God for that, I've been trying to get rid of it for ages but no one would take it!"

[colin todd]

This is all too coplicated when it is really quite simple. As anyone who understands the background to fire safety legislation should know, you cant have a qualification to the requirements of a European Directive. GB tried in 1997 and were severely castigated by the EU as a result. Understanding this fundamental tenet is essential for anyone dealing with the FSO.

[Meerkat]

http://www.hse.gov.uk/press/2010/coi-nw-47musicbox.htm

Instead of using the Fire Safety Order the HSE brought the prosecuton under the CDM Regs.
(But this was a building with multiple occupiers so it is unclear why the Fire Authority were not involved as they would appear to be the enforcing Authority under the Fire Safety Order)

Kurnal - I suspect the reason may have been because it was easier to prove the CDM breaches as some of them are quite black and white.  For example, it is easy to show whether a project has been notified and whether a pre-construction plan is in place.

[Tom Sutton]

A look at the EEC directives may prove useful as indicated by CT specially articles 5 & 6 of 89/391/EEC.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31989L0391:EN:HTML

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31989L0654:EN:HTML

[Speyside]

Due diligence will only help reduce the penalty it won’t absolve the RP totally in certain circumstances. In other circumstances it could absolve the RP totally.

For example, if the RP appoints a competent individual to complete a fire risk assessment on their behalf and implements all the findings of the assessor. They could claim due diligence as a defence as long as the competence of the fire risk assessor can be proven beyond reasonable doubt. Hence there is a need for accredited certification and not self certification or non accredited certification.

If the FRS audit and find fault with the fire safety provisons the RP is still liable for the offence and could face a fine or a custodial sentence. If the case came to court it will be difficult for the prosecution to say what else the RP could have been reasonably expected to do and thus the outcome may still be against the RP but the punishment may not be as severe as in cases where for example the RP has selected a fire risk assessor without proven ability.

If an employee or appointed competent person mess up the RP can’t wash his hands totally but it will then be for the prosecution to make a case against the RP as to why the employees failed to do what they should have.  

Another example would be if a competent fire risk assessor in his report suggested that some fire doors needed replacing with appropriate tested door sets by a competent installer and the RP buys normal internal doors and gets his handyman to install them. If one of those doors failed and a life was lost, the RP obviously can’t claim due diligence as a defence. However if the RP used an accredited company who installed a certificated product and it failed the RP can not be held accountable as he would have done all that is reasonably possible to get it right. The focus therefore would have to shift to the installation company or the product.

[CivvyFSO]

You lot should listen to Mr Todd more. (You won't hear me say that often)

The RRFSO is based on the European Directives kindly shared with us by Tom Sutton.

A key snippet from those directives:

1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.

2. Where, pursuant to Article 7 (3), an employer enlists competent external services or persons, this shall not discharge him from his responsibilities in this area.

3. The workers' obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.

4. This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.


Note the use of "shall" and "shall not".

So an employer always has an ultimate duty to protect their employees, regardless of persons enlisted to help. [4] makes a reference to due care, but this is in quite specific regards to exceptional/unusual/unforseeable circumstances, and only gives an option for member states to provide for the exclusion or limitation of employer's responsibility.

[Davo]

Civvy

Technically speaking CT is correct, in H & S the government were forced to correct the "six-pack" c1997
However, we missed a bit and were forced  in 2002 ish to alter a bit more eg offering eyesight tests before commencing employment as a DSE User.
Close scrutiny would reveal not all of the Directives have been transcribed accurately, and early on some barristers have tried to bring cases citing this, but were told in no uncertain terms that EC Directives (themselves) have no legal standing


davo