Increasingly more and more Fire Safety Professionals (“FSPs”) are being considered for prosecution and enforcement under the Regulatory Reform (Fire Safety) Order 2005 (“the FSO”). We consider FSPs be anyone who supplies goods or services to the fire safety industry including but not limited to fire risk assessors and fire safety equipment suppliers/engineers.
If a company is found guilty of such offences then the Courts have the power to impose an unlimited fine on them based upon their turnover. Furthermore, if you are prosecuted as an individual this can result in a prison sentence of up to two years.
FSPs are generally not the Responsible Person as defined in Article 3 of the FSO, instead their liability stems from Articles 5(3) and 5(4) of the FSO. The FSP’s involvement with the premises and consequent relationship with the Responsible Person is dictated by the contractual documentation that exists between the two.
No amount of clever legal disclaimers can ever disclaim criminal liability. For example if an FSP provides a Fire Risk Assessment which is not suitable or sufficient or a fire alarm engineer certifies a fire alarm system as meeting the British standards when it does not, then criminal culpability may result.
It is however possible to clarify the exact nature of the FSPs involvement with the premises and perhaps just as importantly define what he is not involved with.
This can be done through disclaimers contained within the contractual documents, which are signed by the Responsible Person to ensure that the Responsible Person is in no doubt about the limited control passed to the FSP. For example, if the FSP has no control over the on-going management of the premises once the report has been completed, then this should be made clear in the contract between the two parties. Additionally, the FSP should not be responsible for the failure to implement significant findings.
If during the course of the FSP’s assessment he is not satisfied with the amount of information he has regarding the management setup and running of the premises, he should say so in his report, or at least make clear that certain information has not been provided.
In my own experience, many FSPs have inadvertently created liability for themselves under the FSO because they failed to clarify their retainer or have acted outside the remit of their contractual obligations and over extended their control by providing additional advice/guidance which they were never contracted for.
Where a number of people or organisations have fire risk management duties in relation to premises there can often be confusion as to how those responsibilities are apportioned.
Under Article 5(3) “any duty imposed by articles 8 to 22… shall be imposed on every person other than the responsible person…. Who has, to any extent, control of those premises so far as the requirements relate to matters within his control.”
The duties which fall under their control are explained in Article 5(4). Article 5(4) states:
“Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to –
- The maintenance or repair of any premises, including anything in or on premises; or
- 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 extends”
Or, explaining articles 5(3) and 5(4) in another way,-if a person, or organisation has fire risk management obligations under the Fire Safety Order (e.g. to maintain a fire alarm system), then those fire risk management obligations should be outlined in the contract or tenancy, usually held with the responsible person.
The confusion usually arises where there is no written contract or tenancy; or where there is one, but it does not clearly outline the fire risk management responsibilities of the parties. In such cases “the extent” of both the responsible person’s and the contracted professional’s obligations are not clear. It is here that the blame game usually starts.
What has to be remembered here is that once a fire safety professional start working for a responsible person for payment or otherwise, a contract is formed, whether it be verbal or written. Failing to outline one’s responsibilities under the Fire Safety Order within that verbal or written contract leaves both parties at risk of enforcement action, including prosecution.
Therefore, it is essential that FSPs ensure that they protect themselves as much as possible from a contractual point of view by clearly defining what the extent of their control is and what their obligations are. By failing to have appropriate contractual documentation, FSPs are opening themselves up to the possibility of liability under the FSO.
I must stress that I am not suggesting that FSPs should shirk responsibility or look to blame others. The fire safety industry and fire services all share a common goal – keeping people safe. Therefore, by having clear and coherent contractual documentation there is an understanding between all parties involved about what is required by them in order to achieve this common goal.
It is worth noting, that in the absence of any contractual documentation or where there is ambiguity, the enforcement authority will simply put all breaches before the court, outline the parties with fire risk management responsibilities for the premises and let the jury decide who is culpable.
In the past couple of years we have been increasingly working with various organisations with complex fire risk management responsibilities to ensure that their Terms and Conditions, contracts, management agreements and retainers are thorough and effectively outline both the extent of the Responsible Person and the FSPs’ control and obligations respectively. It has been quite alarming and surprising to see just how few contracts and agreements deal with the Fire Safety Order in detail, or at all.
By having clear and comprehensive contractual documentation, FSPs are not only limiting their potential liability under the FSO, but they are also creating transparency and ownership of their obligations with other responsible persons. This in turn, will hopefully mean that there is better co-operation and understanding as to what the requirements are under the FSO between the two parties.
In such circumstances, it is prudent to be pro-active rather than re-active, ensure that your contractual documentation is as watertight as it can be.
If you wish for us to review/amend/draft your company’s Terms and Conditions or Purchase Order Forms please contact me at wps@blackhurstbudd.co.uk or my colleague, James Aird, at JDA@blackhurstbudd.co.uk.
