Fire. A big topic for a toolbox talk, but a really critical area of risk. Fire is capable of totally destroying all of your physical business assets, as well as causing widescale death and injury, within minutes. Fire risk needs to be managed by your business to prevent this type of catastrophic loss and injury; avoid insurance policy coverage issues because of non-compliance with legal duties, and to prevent significant financial penalties and imprisonment. This briefing for Directors by health and safety specialist solicitor Sue Dearden and process safety expert Tristan Pulford highlights the current key duties and some common but avoidable breaches.
Duties are owed by “the responsible person” for any non-domestic premises. This includes:
- an employer using the premises.
- the owner.
- any tenant.
- anyone else with some control over premises, such as a building manager, facilities manager or managing agent.
If there is more than one responsible person then they are required to work together. Do not assume for example that tenants (or subtenants) ought to have controlled the risk and that as their landlord your duties are therefore discharged. Apart from continuing to be one of the responsible persons, a landlord retains responsibility for the risk assessment in relation to common parts.
The responsible person has duties which include ensuring that:
- a fire risk assessment of the premises is carried out by a competent person and reviewed regularly.
- staff are told of the risks identified.
- appropriate fire safety measures are in place (dealing with fire prevention, fire detection, fire control and escape).
- there is an emergency plan which identifies key points to isolate electricity or gas, and containment measures for any potentially dangerous substances.
- staff are given fire safety instructions and training on what to do if a fire is discovered on the premises or fire alarms are sounded.
Depending on the size of the premises and number of staff, fire marshals are usually appointed and given additional training on what is expected from them in an emergency. Records need to be carefully maintained of drills carried out and of testing on any fire alarm and fire-fighting equipment.
Although a failure to meet your legal duties may be a breach of the Health and Safety at Work etc Act 1974, usually it is the local fire and rescue authorities which will inspect premises to check on fire safety measures and which will prosecute for a breach of duties owed under the Regulatory Reform (Fire Safety) Order 2005 (“FSO”).
Three key things to note about FSO offences:
- they do not require a fire, or any injury or death, for the responsible person to be guilty of an offence.
- the penalty imposed on a business on conviction is likely to be a substantial fine.
- if your company as a “responsible person” commits an offence and that is attributable to your neglect, consent or connivance then as a director (or manager or other officer ) you, as well as the company will be guilty of an offence and you may also be fined and/or imprisoned.
Common issues which are easy for a careful and prudent Director of a business to identify and take responsibility for putting right:
- Check that a competent person has carried out a fire risk assessment which reflects the current state and use of the premises and in particular any high-risk sources of ignition and flammable materials. Pallet storage is a typical example – the number of pallets stored may increase over time, but the fire risk assessment may not be reviewed to consider whether their location and flammability have an impact on fire risk on the premises. Also, consider if your risk assessment been reviewed in light of any work changes to deal with COVID risk controls. For example, do you still have trained firefighters and fire marshals on-site if you are working with reduced numbers or altered shift patterns? Do reduced numbers impact safeguards for anyone with mobility issues? Do any additional Perspex barriers (for COVID control) alter the risk of spread of fire, or toxicity of any fire which could have an impact on rescuers/firefighters?
- Blocked escape routes and fire exits. People put boxes, tools and equipment down, often intending the position to be temporary – but then forget to remove them and the obstruction often then accumulates. Exercise zero tolerance. Be alert to these issues and get obstructions removed. If you have added barriers to control pedestrian traffic flow or manage COVID infection, do they impact escape routes? Do you have regular inspections to ensure routes are kept clear?
- Make sure fire doors are not propped open and are kept closed unless they have regularly tested magnetic releases that operate in the event of fire detection equipment being triggered.
- Periodically check fire exits can be opened from the inside and don’t ignore faulty emergency lighting.
- Make sure fire extinguishers are checked on at least an annual basis by a competent body, which can check for any damage or signs of pressure loss. As they should only be used in an emergency it is vital that they are going to work.
- Can you remember the last fire drill? Check the records and ensure one hasn’t been missed, perhaps as a result of COVID lockdowns. There should be at least one each year.
Whilst this briefing identifies your current key obligations, fire risks were of course thrown under a spotlight with the Grenfell Tower disaster in June 2017. As a consequence of this scrutiny, the Fire Safety Bill is currently on its way through Parliament which will make amendments to the FSO, particularly to ensure that building owners and managers of high rise and multi-occupied residential buildings have clear obligations in relation to matters such as lift inspections, review of evacuation plans, ensuring clear and simple fire safety instructions are given to residents and that flat entrance doors comply with current standards (regardless of property age where the external walls have unsafe cladding).
Additionally, the Building Safety Bill was published in July 2020 which, among other things will establish a new Building Safety Regulator (which will be part of the HSE), sets out a new regulatory regime for the design and construction phase of higher risk buildings and deals with occupied higher risk buildings, establishing an “accountable person” role responsible for appointing a “Building Safety Manager” and specific new duties for each. Higher risk buildings are likely to be those that are 18m above ground level (this may reduce to 11m), are over 6 storeys high and have 2 or more dwellings, 2 or more residential rooms, or include student accommodation.
In addition to being alert within your business to the fire risks and duties to manage those risks, do keep an eye on this draft legislation as it is finalised and bought into effect in case it has an impact on your obligations.