By James Aird
It is well documented that more and more Fire Safety Professionals (“FSPs”) are being considered for prosecution under the Regulatory Reform (Fire Safety) Order 2005 (“FSO”).
Generally speaking FSPs are not the Responsible Person as defined in Article 3 of the FSO, rather their liability and culpability stems from Articles 5(3) and 5(4) of the FSO. In the industry there are some FSPs who do not fully appreciate the significance of Article 5 in respect of potential liability under the FSO.
Article 5(3) of the FSO states:-
Any duty imposed by articles 8 to 22… shall also 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.
Article 5(4) of the FSO states:-
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; or
(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.
Accordingly, here are 5 top tips that an FSP should consider when engaging in a new instruction with a client.
- ‘Oral Contracts are not worth the paper that they are written on’
Often when speaking with FSPs we are told by them that there is no need for a written contract, as ‘it is not how they do business’ and that their word is their bond. Whilst noble in theory, the reality is that this is a somewhat reckless approach.
The obvious issue stemming from verbal contracts is that lack of clarity that arises in relation to the extent of the FSP’s control and obligations in the context of Article 5 of the FSO. Since Grenfell there has been a great shift in people’s attitudes towards Fire Safety management for premises, there is now an increased awareness of the need for there to be absolute clarity between the various parties involved with a premises as to whom is responsible for what.
Further, the point that we often make to clients when reviewing their contractual documentation is that in the event of a premises facing enforcement action by a fire service due to the premises failing to meet the requirements of the FSO, if the Responsible Person is asked who is responsible for the Article which has been breached, and in the absence of any written contract they will likely look to shift the focus and subsequent blame to the FSP who has had involvement with the premises.
Therefore, if this situation arises and the Fire Service invite the FSP in for an interview, if the FSP can exhibit a written contract which clearly demonstrates the extent of his control and obligations, provided that the FSP was not involved with the breach in question then the Fire Service is not likely to pursue the FSP further.
Where there is no written contract and it is not clear who is responsible for what aspect of fire safety for the premises, then the Fire Service will likely prosecute both the Responsible Person and the FSP, allowing the jury to ultimately decide who is responsible. Accordingly, ‘the pen is mightier than the mouth’, we would always advise an FSP to have a written contract over a verbal contract.
- The Fire Risk Assessment does not form part of the Contract
Some FSPs, specifically Fire Risk Assessors are indeed aware of the need to have disclaimers in their contractual documentation in order to limit their potential liability under the FSO. However, the frequent mistake that is made is that they put these disclaimers in the wrong place rendering them unincorporated and leaving the FSP open to potential liability under the FSO.
Of course, the Fire Risk Assessment itself is a very important document and contains vital information relating to the safety of a premises in relation to the danger posed by Fire. Further, it is of course accepted that if the Fire Risk Assessment is not suitable and sufficient as per Article 9 of the FSO then of course the FSP will have failed to meet the requirements and standards expected under the FSO and may well face prosecution.
However, the Fire Risk Assessment does not form part of the ‘Contract’ in the context of Article 5(4). Therefore, by putting disclaimers in the Fire Risk Assessment itself the FSP will not have incorporated the disclaimers into the Contract and cannot be relied upon.
- Stick to your Contracted terms
Perhaps the most common reason for FSPs facing prosecution is because during the course of their involvement with a premises they have acted outside the remit of the Contract and become involved in aspects of fire safety for the premises which:
- They were not contracted for;
- they were not paid for.
There is an overriding sentiment in the industry that FSPs have to go ‘above and beyond’ and do whatever they can to make a premises safe. Whilst we appreciate that FSPs want to do the best job that they can for their client, they need to realize their own limitations and understand the extent of their obligations under their contracts.
The analogy that we often make to clients when reviewing their contractual documentation is that when you go to an Italian restaurant you don’t expect to have a curry. Similarly, if an FSP has been contracted to solely maintain a fire alarm system then they should not become involved in advising/commenting upon the premises emergency exits unless they have been contracted to. Any advice that the FSP gives in this regard made be relied upon by the Responsible Person and in the event that the advice is incorrect the FSP may have inadvertently created additional liability. Stick to what you’re get paid
- Get paid for the high risk work that you do!
Carrying on from tip number 3 it is bewildering to us that FSPs are prepared to take on additional work and give out advice for aspects of fire safety which they are not contracted for when they receive no remuneration for doing so but take on additional liability. This may not surprise some readers but coming from a law firm’s perspective, ensure that you are paid for the specialist service/expertise that you are providing!
A prosecution under the FSO can result in an unlimited fine and a possible custodial sentence of up to two years, therefore if an FSP is happy to take on the additional liability for providing additional services, then they should make sure that they are paid for doing so.
- No signature, no contract
Some FSPs that we have worked with in the past have stated that they are concerned that their clients may not be willing to enter into written contracts. In such an event the FSP must ask themselves, ‘is this a client that I want to do business with’?
By having a written contract, the parties are removing any ambiguity that may exist and it provides essential clarity in defining the extent of the parties’ obligations and control, further it also satisfies Article 22 of the FSO (co-operation and co-ordination) between the FSP and the Responsible Person.
By providing a written contract an FSP is not shirking their responsibility, in fact it is quite the opposite they are taking ownership of their control and obligations, which also provides the client (Responsible Person) with a better appreciation of their control and obligations.
In our experience, since providing FSPs with bespoke contractual documentation they have not encountered any difficulties from clients in signing the documentation as for the reasons outlined above, as it removes ambiguity and provides clarity to the parties something that has until recently been lacking in the industry.
If you wish to discuss your contractual documentation and how to limit your potential liability under the FSO, please do not hesitate to contact James Aird jda@blackhurstbudd.co.uk or telephone 01253 629300.
