The Regulatory Reform (Fire Safety) Order 2005 (FSO) was introduced to remove multiple and overlapping fire safety provisions and to replace it with a single fire safety regime. The ultimate aim of the FSO was to reduce complexity within the industry. And yet, nearly 10 years on, there is still doubt as to who is responsible for fire safety in premises.
The FSO came into force on 1 October, 2006. It delivered a step-change in how fire safety legislation is applied in virtually all premises in England and Wales. No longer would the fire safety arrangements be decided by the Fire Service; the responsibility was moved to the ‘responsible person’.
The ‘responsible person’ as defined in Article 3 of the FSO is also enshrined in health and safety legislation following the Roben’s Report of 1972, which led to the Health & Safety at Work Act 1974 (HSAW). The HSAW clearly states that the primary responsibility for controlling hazard and risk lies with those who create the hazards and can therefore reduce risk.
In the case of health and safety under the HSAW, the responsibility for creating a safe environment rests with the person responsible for the premises or activity being undertaken.
The same also applies under the FSO; it places legal obligation on the ‘responsible person’ to provide premises where their employees and any other relevant person is safe from fire and the effects of fire.
“Not me, it’s my boss” We hear lots of people saying.
Let’s begin by looking at Article 3 of the Regulatory Reform (Fire Safety) Order 2005:
“Meaning of “responsible person”
Article 3. In this Order “responsible person” means—
(a) in relation to a workplace, the employer, if the workplace is to any extent under his control;
(b) in relation to any premises not falling within paragraph (a)—
(i) the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not);
(ii) the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking.”
So that’s clear then? Or is it?
If it is a workplace the ‘responsible person’ is the employer, right? The answer is Yes and No.
An employer is only responsible for the fire safety arrangements that they can control. As an employer it may be argued that they must have some control over the premises they operate their business from and therefore with that control comes responsibility. There are many situations where businesses operate within part of larger premises, and some of the fire safety arrangements within the workplace are under the control of others, e.g. landlords or managing agents, for example the fire alarm system or a sprinkler system. In these cases the employer and the person in control of the premises are both the ‘responsible person’.
If it is not a workplace it is the person who has control of the premises, this covers premises such as the communal areas of blocks of flats, village halls, charity shops etc. where there are no employees. It is worth pointing out that if the communal area of a block of flats has an employed concierge or caretaker, then their employer is a responsible person for those areas where the employee works.
If there is no one in control of the premises the responsibility falls to the owner, this in effect provides a backstop to ensure that there is always someone with ultimate responsibility for providing premises that are safe from fire or the effects of fire for all relevant persons.
So if we are having difficulty identifying who the responsible person is perhaps we should have a look at Article 5 of the FSO which sets out the duties of the responsible person, perhaps this will help us to identify who it is, or more correctly who they are.
5. —(1) Where the premises are a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises.
(2) Where the premises are not a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises, so far as the requirements relate to matters within his control.
(3) Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person referred to in paragraphs (1) and (2), who has, to any extent, control of those premises so far as the requirements relate to matters within his control.
(4) Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to—
(a) the maintenance or repair of any premises, including anything in or on premises;
(b) the safety of any premises,
that person is to be treated, for the purposes of paragraph (3), as being a person who has control of the premises to the extent that his obligation so extends.
(5) Articles 8 to 22 and any regulations made under article 24 only require the taking or observance of general fire precautions in respect of relevant persons.
The importance of Article 5 is often overlooked as it is thought that Article 3 is quite clear with its hierarchical approach, e.g. Employer. Person in Control, and finally Owner, however it is quite clear that by looking at and understanding sub paragraph 3 and 4 it is very clear that there is likely to be more than one responsible person, especially where people have control of part of the premises, or are responsible for specific aspects of the fire safety arrangements. It is therefore suggested that any person who can control any aspect of the fire safety arrangements in a premises is a ‘responsible person’.
It is easy to see why there is still a misunderstanding or confusion of who is the ‘responsible person’ as it is often the case that there is more than one.
So if you have now convinced yourself that you are not the responsible person perhaps we should consider Article 34:
“Onus of proving limits of what is practicable or reasonably practicable
34. In any proceedings for an offence under this Order consisting of a failure to comply
with a duty or requirement so far as is practicable or so far as is reasonably practicable, it is
for the accused to prove that it was not practicable or reasonably practicable to do more than was in fact done to satisfy the duty or requirement.”
In simple terms, Article 34 means that you are guilty unless you can prove otherwise and as such, you will be charged with failure to meet your legal obligations under the FSO. Not the norm for British law but a significant approach when determining the ‘responsible person’ in a court of law.
My view is quite simple. To determine if you are the ‘responsible person’, ask yourself this fundamental question:
If I am aware of a deficiency with the fire safety arrangements in my workplace, can I fix it?
If the answer is ‘yes’, you are probably responsible and I strongly suggest you take action to fix it.
If on the other hand the answer is ‘no’ but you are expected to report it to a premises manager, helpdesk or senior manager then it is your responsibility until you have reported the fire safety hazard. You own the hazard until you refer it to someone else who has the autonomy to fix it.
We can therefore conclude that if you can affect the fire safety arrangements in a premises by your acts or omissions you may be considered a ‘responsible person’ under the Regulatory Reform (Fire Safety) Order 2005 and should they be able to defend yourself.
If you can prove that you did everything practicable or reasonably practical to prevent a fire hazard that could endanger the safety of employees, colleagues or other relevant persons and there is nothing more you could have done then you will at least be in a defensible position.
It is therefore critically important that all those who, either directly or indirectly, have some responsibility for fire safety in premises understand their duties, discharge these duties, and can demonstrate that they have discharged those duties.