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May 9, 2012

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SHE 12 – Unforgettable fire

Even though many of the UK’s laws in fire safety have been in place for several years, there is still considerable confusion among duty-holders as to their relevant responsibilities. Laura Cameron provides a quick overview.

Historically, fire safety has not always been a topic that has kept health and safety professionals awake at night. It used to be more or less accepted that if you had an up-to-date fire certificate, then everything was good – but not so nowadays.

In recent years there have been significant changes to fire safety legislation across the UK, and a number of related court cases – many of which have resulted in heavy penalties – have grabbed the headlines and brought the subject to the attention of businesses. 

If you operate across the UK then the bad news is that you have to comply with the different regimes that operate in England and Wales, Scotland and Northern Ireland.  Thankfully, the rules are broadly similar but there are some important but subtle differences.
 
Regional variations

England & Wales – In both countries, fire safety is governed by the Regulatory Reform (Fire Safety) Order 2005 (RRO), which came into force in October 2006. This legislation, which applies to all non-domestic premises in England and Wales, replaced more than 70 different pieces of fire safety law.

Scotland – In Scotland, fire safety is governed by the Fire (Scotland) Act 2005 (FSA). In general terms, domestic premises do not fall within the scope of this legislation, but there are exceptions relating to Houses in Multiple Occupancy (HMOs) and care-home premises.

The basis of this legislation is to seek to ensure, in the event of a fire, the safety of persons (whether employees, residents, visitors, or others) by setting out the rights and responsibilities of individuals in respect of fire safety.

Essentially, anyone that has control of a premises – to any extent – will have some responsibilities for ensuring that those occupying the premises are safe from harm caused by fire.

Northern Ireland – Here, the Fire and Rescue Services (Northern Ireland) Order 2006 (FRSO) and Fire Safety Regulations (Northern Ireland) 2010 (FSR) govern fire safety. This legislation reinforced the risk-based approach to fire prevention introduced across the UK.

The duties imposed by fire safety legislation across the three jurisdictions are broadly similar. Duty-holders are required to:

  • take general fire precautions to ensure the safety of any employees and non-employees on the premises;
  • carry out a risk assessment to identify what general fire precautions are required for the particular premises and keep this under review;
  • keep records, which must include the significant findings of the fire risk assessment (and any review); the fire precautions that have been, or will be put in place to address the significant findings; and any group of persons identified by the assessment as being especially at risk;
  • make and give effect to fire safety arrangements, as appropriate;
  • take measures for fire-fighting and fire detection, including the provision of appropriate equipment at the premises;
  • ensure that the premises, any fire safety equipment, and all emergency routes and exits are properly maintained and kept in working order;
  • cooperate with other people who have fire safety responsibilities and coordinate with each other;
  • provide information and safety training for employees; and
  • provide information about fire safety risks for third parties who may be affected, and those who are responsible for such people.

In England and Wales, as well as Northern Ireland, there are additional specific provisions, including:

  • if required, appointing competent persons to help discharge duties relating to fire-fighting in the premises; implementing evacuation procedures; and undertaking preventative and protective measures; and
  • giving consideration to the additional risks arising from any dangerous substances at the property and take steps to eliminate or reduce those risks.

Who owes the duties?

In England and Wales, duties under fire safety legislation are owed by ‘responsible persons’, who include:

  • employers – if the workplace is under their control to any extent;
  • where there is no employer, the person who has control of the premises (whether the occupier or owner of the premises, or not) for the purpose of a trade, business, or undertaking (whether or not for profit); and
  • in all other cases, the owner – if, for example, the building is unoccupied.

Those with obligations under a lease or any other contractual agreement for maintenance or safety of the premises are treated as having control of the premises for the purposes of the legislation.

In Scotland and Northern Ireland, duties under the respective fire safety legislation are owed by employers and those in control of ‘relevant premises’.

The person in control of relevant premises does not necessarily mean just one entity and would include an employer (if there is one), a person in control of the premises in connection with a trade, business or other undertaking, and the owner. A landlord or contractor who takes responsibility for installation and maintenance of fire precautions or fire safety measures, under the terms of a lease or contract, may also be in a position to exercise varying degrees of control over premises. Consequently, they too may bear a degree of responsibility, but only to the extent specified in the lease or contract.

It is important to note that in relation to control of relevant premises in Scotland and Northern Ireland and responsible persons in England and Wales, the responsibilities of those who have ‘control’ of premises only extend to the extent of their control.  

Allocation of responsibilities

In properties where there may be more than one person with fire safety duties, it is not clear from the legislation or the accompanying guidance precisely how responsibilities should be allocated. In cases where there is more than one person potentially subject to obligations under fire safety legislation, the level of responsibility will vary according to the employment position and the degree to which that person can, in fact, exercise control over safety in the premises.

Tenants

In a property that is subject to a full repair and insurance lease, the tenant will owe duties under the relevant legislation, assuming that either:

  • the property is a workplace and the terms of the lease give the employer (as tenant) control of the property; or
  • if the tenant is not an employer, the tenant has control of the premises for the purpose of its trade, business, or undertaking.
  • A tenant will remain responsible for compliance with fire safety in relation to the property while the lease is subsisting. However, if the tenant sub-lets the whole of the property on terms equivalent to the terms of its own lease, the primary responsibility for complying with the legislation is likely to pass to the sub-tenant.

Landlords

The landlord, or a tenant who has sub-let the property, could also be considered to owe duties under the legislation, to the extent they have any obligation in the lease in relation to safety or maintenance, or retain an element of control over any part of the premises (which could include the ability to enter the premises to carry out repair or maintenance works).

Liability for compliance with fire safety legislation will revert to the landlord on expiry of the lease.

Multi-occupied premises

For multi-occupied premises, each tenant may have fire safety duties for its own unit, in accordance with the terms of the lease. The landlord will be responsible for any retained parts, vacant units and communal areas. Depending on the terms of the lease, the landlord could also, to some extent, be the responsible person for some of the individual units. The landlord and its tenants must coordinate the fire safety measures each is taking, as well as cooperate with each other.

Where a management company is set up for the administration and provision of services, the duties under fire safety legislation may also apply – for example, if maintenance contractors have a contract in relation to the repair and maintenance of aspects of a property (including facilities and equipment) that are related to fire safety.

In light of the confusion that could arise in a landlord/tenant/managing agent scenario over responsibility for fire safety, it would be prudent to ensure that any lease and/or contract document spells out exactly who is taking responsibility for those obligations. 

The courts’ approach to fire safety fines

Awareness of duty-holder responsibilities is especially important given the high fines imposed by the courts following conviction for breaches of fire safety legislation.

In 2010, the high-street business New Look Retailers appealed against a fine of £400,000 following conviction for two offences under the RRO. The appeal was dismissed and the fine upheld by the Court of Appeal, which concluded that the level of fine imposed should reflect the serious nature of the risk against which employees and others should have been protected.1

More recently, the Court of Appeal dismissed an appeal against sentence in the case of R v Draper.2 Mr Draper was the owner and landlord of a property in Devon, which was sub-divided into seven flats. A fire broke out on the ground floor and spread throughout the property, trapping some residents. Following an investigation it was found that the front doors of four of the flats in the house did not comply with the statutory requirements laid down by the RRO. Mr Draper was fined £135,000, plus costs of £23,000. The Court of Appeal dismissed a subsequent challenge, noting that “the potential for risk was such that this offending was rightly placed. . . at a high level”.

There are no reported cases following conviction in Scotland or Northern Ireland – however, given the similarities in the fire safety regimes in these jurisdictions, there is no reason to expect that the courts would issue significantly smaller fines.

Regardless of the UK jurisdiction in which you operate, you will have fire safety duties if you are an employer, or a person in control of non-domestic premises. Consequently, you should ensure that you are aware of the extent of your control of premises and your duties in terms of fire safety. If you are in control of premises to any extent, then, together with other relevant parties, you should ensure that you cooperate and coordinate the approach to fire safety with one another.

References
1    www.shponline.co.uk/incourt-content/full/court-dismisses-new-look-appeal
2    EWCA Crim 2786 [2011]

Laura Cameron is a partner for McGrigors and will be speaking on this subject at the SHP Legal Arena on Tuesday, 17 May at 2pm – for more details about the
SHP Legal Arena click here.

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