Cattle Market Fire Nottingham

Fire safety in the workplace on return to work

The risk of fire in residential tower blocks has been under the spotlight since the Grenfell Tower fire almost 3 years ago in June 2017, but changes to working environments and temporary shutdowns may well have impacted fire risks in other environments. Health & Safety Solicitor Sue Dearden, and Chartered Electrical Engineer Steve Bennett consider some common fire risks in the workplace, your duties as an employer in this area, and the consequences of breach.

Employer Obligations

Alongside the general Health & Safety at Work etc. Act 1974 (“HSWA”) duties to ensure so far as is reasonably practicable that the health and safety of staff and others who may be impacted by your business  is not put at risk (which can include a failure to identify and manage fire risks), specific duties in relation to fire risks are set out in The Regulatory Reform (Fire Safety) Order 2005 (“RRO”).

The RRO came into force 1st October 2006 and is binding on all employers in England and Wales. The fire safety regime in Scotland for non-domestic premises is primarily set out in Part 3 of the Fire (Scotland) Act 2005 and the Fire Safety (Scotland) Regulations 2006. The Scottish requirements are similar to the requirements in England and Wales.

RRO duties lie with employers in relation to workplaces, and also on owners of premises, and those with control of premises including shared parts (to the extent they have control). The duties under the RRO, as under other health and safety regulations[1] are to identify fire related risks, eliminate those risks where possible (e.g. removal from the premises of stored flammable substances) , but otherwise to manage the remaining risk to ensure so far as reasonably practicable the safety of employees and others.  You do not need to have an accident to be guilty of a HSWA offence. Similarly, you do not need a fire to be guilty of a RRO offence.

Measures are required to be taken by duty holders (referred to as the “responsible person” in the RRO)  in relation to:

  • The reduction on premises of the risk and spread of fire (including consideration of flammable or explosive substances on your premises)
  • The means and methods of escape to lead people as directly as possible to a place of safety. Measures need to include keeping emergency routes and exits clear and with signage in place in accordance with the Health and Safety (Safety Signs and Signals Regulations 1996; ensuring emergency doors open in the direction of escape; providing emergency lighting. and ensuring the number of exits are adequate given the maximum number of people who may be on the premises at any time
  • The means of detecting and giving warning of fire on premises (fire detectors and alarms)
  • The means of fighting fire on premises (easily accessible simple to use firefighting equipment)
  • Arrangements in the event of fire, including evacuation, and mitigation of its effect including the training of staff in relation to the arrangements both when they start their employment and whenever exposed to new or increased safety risks.

The RRO also requires the development of an overall fire prevention policy and appropriate instructions to be given to staff regarding the measures in place.

If you employ 5 or more people then the fire risk assessment and measures in place to plan, organise, control, monitor and review fire risks, need to be in writing.

Fire risk assessments must be kept up to date and reviewed particularly when circumstances change. A long period of shut down and reductions in operations would constitute changes which ought to prompt a review of fire risk assessments.

Common Issues for particular consideration post lockdown

Under normal use, periodic inspection of electrical installations is required to prevent damage to property by fire and heat, arising from defects. Electrical installations deteriorate due to a number of factors such as wear, tear, corrosion, excessive load, aging and environmental issues.

But when buildings have been left empty or have had a period of reduced usage or temporary change of use, this can give rise to an increased risk of deterioration due to environmental issues such as damp, vermin and insects, accumulation of dust, flora and fauna and aging due to temperature extremes. Poor maintenance or damage to the building fabric, or water system could also lead to electrical equipment being subjected to contact with rain or mains water, which it was not designed to cope with.

If electrical equipment has not been in use or has been in partial use, then it would be a mistake to assume that the period between electrical inspection and testing can be extended. In fact, the opposite may be true.

The ingress of dust, water, insects, or flora into electrical installations can result in corrosion or tracking across insulated surfaces. Corrosion can result in poor connections which causes resistive heating. Even a small increase in the resistance across an electrical connection can cause the connection temperature to increase sufficiently to ignite electrical insulation. There is also the possibility of carbon tracking across electrical insulation between live parts and live parts and earth which can cause a fire.

The accumulation of dust, flora, and fauna on the external surfaces of electrical equipment can cause it to overheat and catch fire when it is returned to use due to the maximum working temperature of the electrical cable being exceeded. The presence of vermin may increase when buildings become inactive or where vermin control has been allowed to lapse. Rats for example often chew electrical cables to prevent the overgrowth of their teeth, causing live electrical conductors to become exposed. This increases the risk of fires  when the bare conductors come into contact with dry combustible material such as wood or paper.

So far as is reasonably practicable, Regulation 4 of the Electricity at Work Regulations 1989 (“EAWR”) requires electrical systems to be of such construction and maintained so as to prevent danger, and every work activity including operation, use and maintenance of a system, and work near a system must be carried out in a manner which does not give rise, so far as is reasonably practicable to danger. These duties (per Regulation 3) fall on employers (and the self-employed) in so far as they relate to matters which are within their control.

In the circumstances, if lockdown has impacted use of your premises, it is worth giving some thought to whether periodic electrical inspection and testing should be brought forward to manage the increased risk of electrical fires.

Many employers also have staff working from home at present. Since lockdown, some areas of the UK have reported an increase of nearly 50% in house fires compared to similar periods last year. Clearly employers cannot be said to have control over employee premises used for work so the duties that arise under the EAWR do not extend to those premises.

However, working from home does mean that duties under the RRO arise for staff since their premises become an area where they have some control and carry on, “ trade, business or other undertaking” (the RRO does not suggest it needs to be their own business). Prohibition notices can also be issued under the RRO in relation to domestic premises unless they are comprised in a house occupied as a single private dwelling[2]. If therefore staff are living in HMOs[3] or are in flats or maisonettes for example and working from home, such a notice could be served on them if use for work involved a risk so serious that it was felt its use should be immediately prohibited or restricted (see below on Enforcement).  This is something that might for example be used if the fire service needed to called to a domestic fire and the circumstances of changed use become apparent.

The working environment of employees working at home should still be risk assessed by their employer as required by the MHSWR.[4]  In most cases these risk assessments are being achieved with employees completing forms that require them to look at and think about things like the ergonomics of where they work.  Fire though should be one of the risks included in that assessment so you might think for example about including a check that sockets are not overloaded, checking that smoke alarms are fitted, and have been checked, and ensuing that thought has been given to means of escape in the event of a fire.

 Enforcement of the RRO

Enforcement of the RRO duties generally falls to local Fire and Rescue Authority Inspectors. Fire inspectors do not have authority to enforce any breaches of the HSWA, alongside RROz breaches and the HSE (with very limited exceptions) cannot enforce the RRO but can enforce breaches of the EAWR..

Fire inspectors, have a number of powers which include:

  • Requiring you to permit their entry to your premises and provide facilities and assistance to enable them to exercise their powers
  • Investigating, including the right to request that any responsible person is present during the inspection, that you produce information and records (they may also take copies)
  • Requiring you to dismantle any article or processed substance if they believe it is likely to cause danger.

.Fire services can also issue Notices under the RRO which include:

  • Alterations Notices when the Fire Inspector is of the opinion that the premises pose a serious risk or may pose such a risk if a change is made to them or to how they are used. If posing a current risk, the notice will specify what the issue is.  If a change would constitute risk (in terms of physical modifications, a change to fittings and equipment or an increase in the quantities of dangerous substances present on the premises) then before any changes can be made, the Notice will require that the enforcing authority must be notified.
  • Enforcement Notices. These are similar to improvement notices served under the HSWA.  They need to specify the RRO breaches identified and require the issues to be remedied within a specific period (at least 28 days)
  • Prohibition Notices are used when the Fire Inspector is of the opinion that use of the premises will involve a risk so serious that use should be immediately prohibited or restricted.

If a breach of duty with the risk of fire is identified for example by the HSE, it can prosecute under the HSWA or EAWR(for which sentencing is determined by a Guideline issued by the Sentencing Council which the Court must follow and requires consideration of culpability and harm risked before sentencing bands are considered by reference to annual turnover).

If a breach of duty is identified by the local Fire Inspector then the authority can prosecute only for breach of the RRO.  The Court has an unlimited power to fine on conviction for these offences and to impose a term of imprisonment where the accused is an individual,  but unlike HSWA cases there is no sentencing guideline which prescribes sentencing bands which means that sentencing is harder to predict.

Do not though assume that this means fines for breach will necessarily be lower than under the HSWA. Although not bound by the HSWA Sentencing Guideline, it would be difficult for a Judge not to have some regard to it when both the HSAW and RRO are focused on a failure to manage risks to health and safety.

Even before the Guideline, the Court demonstrated a clear intention to take breaches of the RRO seriously.  So for example, following an inspection at Shell Tower, London Fire Brigade issued Shell International with a prohibition notice on 12th January 2007 identifying a number of breaches in the building relating to fire doors being left open, poorly maintained fire doors, obstructed fire doors and escape routes, and high fire loads. The Notice served closed the building with immediate effect and permitted only those involved in rectifying the breaches with access to the Tower. Work was carried out through the weekend to ensure that the issues were addressed, and the premises reopened on 15th January 2007, but the company then faced 13 charges of breaches of the RRO in respect of the issues. This came to Court in June 2009. Shell pleaded guilty to 3 charges and in mitigation pointed to the fact that the breaches had not been deliberate or reckless nor driven by a desire to save costs; no one had been injured; they had co-operated fully and rectified the issues quickly and had a good record. Nevertheless, the Court took note of the fact that 2,700 people could have been put at risk had there been a fire and, at a time when the average HSWA fine was £27,500, it imposed a fine of £300,000 plus £45,000 prosecution costs.

5 months later, in November 2009, New Look found itself in court for RRO breaches following a fire at its Oxford Street retail premises requiring 400 people to be evacuated (including those in neighbouring stores). 30 fire engines and 150 fire fighters attended the scene and Oxford Street was closed for 2 days.  The issues here focused on: a failure to provide clear statements to staff about fire alarm arrangements (which delayed evacuation); failure to carry out alarm testing; emergency routes not kept clear or properly designated; basement fire exits being locked; no emergency escape lighting, and a deficient risk assessment. As with the Shell case, no one was injured (though in this case there was a fire) and in sentencing the Judge commented that, “when it comes to fire, one does not have to think too deeply in order to appreciate the potential for disaster”. New Look was fined £400,000 and ordered to pay £136,000 in prosecution costs.

Another large retailer, The Co-Operative Group was fined £210,000 in 2010 for breaches of the RRO following routine inspections at some of its premises. The breaches here included a failure to maintain rear emergency exit doors, a security code being needed to open an emergency door, obstruction of a fire alarm call point; failure to ensure that a store manager had sufficient fire training, lack of regular alarm testing or early detection measures.

It is not just large companies that have received significant fines. Following a routine inspection in March 2015 of an 18 room hotel, fire officers found blocked emergency exits, inadequate emergency lighting and fire detection systems; fire doors missing or tied with string; the basement being used for sleeping and a failure to carry out a risk assessment. There was no fire, but the owner of the premises Salim Patel was issued with an enforcement notice with which he did not comply. He was prosecuted personally and in March 2015 fined £200,000 plus £30,000 prosecution costs for 7 breaches of the RRO. He was also sentenced to 4 months imprisonment, suspended for 18 months. The London Fire Brigade’s statement issued at the time said, “This is the biggest fine we have ever secured against an individual for breaking fire safety laws and it should send a message to all business owners that if they are shirking their fire safety responsibilities and putting the public at risk we won’t hesitate to prosecute.

Similar to section 40 HSWA which reverses the burden of proof and requires an accused to prove that it has taken all reasonably practicable steps to avoid the offence (rather than for the prosecution to prove that all reasonably practicable steps were not taken), article 33 of the RRO puts the burden on a Defendant to prove that it took all reasonable precautions and exercised all due diligence to avid the commission of the offence.

Summary and Conclusion for Employers

If use of your premises has been impacted by shutdown or reduced working, review your risk assessments in relation particularly to electrical components on your premises and consider if routine inspection and testing should be brought forward to mitigate any increased fire risk.

In risk assessments for staff working from home do ensure that consideration is given to their management of fire risks and evacuation, particularly if they live in high rise accommodation or are in multiple occupancy space.

Fire Safety Inspectors who are charged with enforcing breaches of the RRO do not appear to prosecute lightly and often follow a failure to heed advice and warnings. Much like the HSE before success for its inspectors became measured by Fees for Intervention levied, their focus on the whole seems to be on educating duty holders and achieving compliance, rather than on punishment. Prosecutions for RRO offences are not everyday occurrences but clearly are viewed seriously by the courts, particularly when large numbers of staff or members of the public would have been put at risk in the event of a fire.  Enforcement has stepped up since Grenfell Tower, but primarily in connection with multiple residence blocks.

Be aware of your duties, identify and manage your fire risks sensibly and RRO enforcement should be avoidable.

Sue Dearden is a specialist Health and Safety Solicitor at Finch consulting and Steve Bennett a Chartered Electrical Engineer at Finch Consulting, with experience of investigating fires caused by poor design or inadequate inspection and maintenance.

If you have any questions arising from this article or need advice or assistance in area please call Finch Consulting on 01530 412 777 or Email:

Susan.Dearden@finch-consulting.com

Stephen.Bennett@finch-consulting.com

[1] For example, Management of Health and Safety at Work Regulations 1999

[2] Article 31(10) of the RRO

[3] Houses in multiple occupancy, which are normally required to be licenced by the local authority

[4] Management of Health and Safety at Work Regulations 1999 regulation 3