Fire safety foundations
Once the court has established negligence on behalf of the defendant, it may then be argued that the claimant displayed contributory negligence. In other words that the loss was wholly or partly as a result of the claimant’s own unreasonable behaviour.
Limitations Act 1980 applies
This Act of Parliament gives a specifi c time period dur-ing which claims can be made in the civil courts. For personal injury cases, this period equates to three years from the date of the unreasonable acts which caused them, or for industrial diseases three years from the date of diagnosis. Any claims submitted outside this deadline are not accepted by the civil courts.
1.5 The legal and fi nancial
Offence Summary conviction On indictment Breach of sections 2–6 HSWA £20 000 per breach £ Unlimited Breach of sections 7–8 HSWA £5000 per breach £ Unlimited Breach of regulations or Orders £5000 per breach £ Unlimited Contravening section 20 items £5000 Not indictable
Preventing a person from £5000 £ Unlimited
appearing before an inspector
Making a false statement £5000 £ Unlimited
Contravening an improvement or £20 000 and/or 6 months’ £ Unlimited and/or 2 years’
prohibition notice imprisonment imprisonment
Table 1.3 Table itemising maximum penalties under the HSWA
options dependent upon the seriousness of the breach.
They may:
➤ Provide verbal advice and direction
➤ Provide the guidance and direction by way of a letter
➤ Serve an enforcement notice
➤ Prosecute the offending organisation or person should there be grounds for so doing.
Enforcement of the legislation
Dependent upon the enforcing authority there are a var-iety of types of enforcement notices that can be served.
Health and safety improvement notice – this notice may be served by a health and safety enforcing offi cer when, in their opinion, there has been a breach of statutory duty or that there is likely to be a breach of statutory duty.
For example, if risk assessment records have not been recorded or specifi ed training has not been completed.
Figure 1.24 Diagram of court structure
Human Rights European
Courts Justice
House of Lords
Court of Appeal
High Court Queen’s Bench Division
Crown Court Employment
Appeals Tribunal
Employment
Tribunal County Court Magistrates'
Court
Fire safety foundations
Fire safety alterations notices – the enforcing authority may serve an alterations notice on a responsible person under two circumstances:
1. When the authority is of the opinion that the premises constitute a ‘serious risk’ to ‘relevant persons’ or 2. The premises may constitute a serious risk if a
change is made to them or to the use to which they are put.
An alterations notice must detail those issues which constitute a serious risk and state the reasons why the enforcing authority has formed its opinion. On both occasions when an alterations notice has been served the responsible person must notify the enforcing author-ity of any proposed changes to those premises.
It should be noted that an alterations notice is merely a notice that provides information to a responsi-ble person relating to the magnitude of the perceived fi re risk. If the enforcing authority is of the opinion that works need to be carried out to reduce the risk, they may issue an enforcement notice.
Fire safety enforcement notice – this is very similar to the health and safety improvement notice and is served when, in the opinion of the enforcer, the responsible person or other person has failed to comply with any aspect of the RRO.
Fire fi ghters’ switches for luminous discharge tubes – luminous tube signs designed to work at a voltage exceeding a prescribed voltage (1000 volts AC or 1500 volts DC if measured between any two conduct -ors; or 600 volts AC or 900 volts DC if measured between a conductor and earth) must have a cut-off switch which is placed, coloured and marked to satisfy such reasonable requirements of the fi re and rescue authority to ensure that it is readily recognisable by and
accessible to fi re fi ghters. Where this is not the case the fi re authority may issue a notice.
Health and safety and fi re safety prohibition notices – this type of notice, whether for health and safety or fi re safety, is served when the enforcer is of the opinion that the activity or premises involved is so serious that the activity should be stopped or the use of the premises be prohibited or restricted. Examples of these would be operating a machine with no guard or chaining up a fi nal fi re exit door.
Powers of inspectors/enforcers
In order to carry out their duties inspectors/enforcers are given a variety of powers. These can be wide ranging;
their key powers are listed below:
➤ Enter premises at any reasonable time taking with them a police offi cer (to maintain the peace) if required
➤ Request and inspect documentation and records and if required take a copy
➤ Require any person to provide assistance to take samples of any articles or substances
➤ To examine, conduct investigations and where appropriate require the premises or items to be left undisturbed
➤ Remove, render harmless or destroy articles or substances
➤ Issue verbal advice, written advice or serve notices.
Local Building Control enforcement offi cers have additional powers in respect of breaches of Building Regulations. These additional powers include the abil-ity to refuse permission to build or make alterations to buildings and take action to render structures unsafe at the expense of the owner/occupier.
Appeals
As previously discussed, an appeal system exists to enable those being prosecuted and those who have been served with enforcement notices to take their case to appeal. Appeals can be made against any enforce-ment notices by lodging an appeal with an employenforce-ment tribunal. Table 1.4 details the consequences of appeal-ing within 21 days against the notices served.
1.5.2 Prosecutions
In addition to issuing notices, enforcement authorities may also seek prosecution for breaches of legislation.
Enforcing authorities may prosecute any persons who hold a legal duty for fi re, health and safety, e.g. respon-sible persons, employers and individuals. It is now doc-umented that on occasions the enforcement authorities Figure 1.25 Powers of enforcement authorities
from both fi re and health and safety seek joint prosecu-tions for breaches that result in deaths as a result of fi res and explosions.
While there appears to be little information regarding the number of prosecutions taken in relation to fi re safety, the HSE produces summaries of prosecutions which are made available on their website. Table 1.5 shows the number and nature of prosecutions taken by the HSE over a fi ve year period. The fi gures shown are merely the fi nes imposed on employers under the HSWA. They do not include the indirect costs incurred by organisations who are prosecuted, in terms of bad publicity and legal fees.
Where a safety breach is committed by a body corporate and is proven to have been committed with the:
➤ consent or
➤ connivance of
➤ or to be attributable to any neglect
on the part of any director, manager, secretary or other similar offi cer of the body corporate (or any person pur-porting to act in any such capacity) they, as well as the body corporate, are guilty of that offence, and are liable to be prosecuted and punished accordingly.
1.5.3 Financial
In addition to the fi nes imposed as a result of success-ful prosecutions, the fi nancial ramifi cations of failing to manage safety effectively, as discussed previously, can impact considerably upon an organisation. It is clear, given a variety of surveys undertaken over past years, that many organisations do not fully appreciate the true consequences of an incident and believe that the insur-ance premiums that they pay cover the costs.
Over recent years insurance companies have begun to infl uence the management of safety by rewarding organisations that have an effective management safety record (low claims history) by maintaining premiums and excess; alternatively they have raised the poorer safety performers’ premiums and excess and on some occasions refused to cover them at all.
Insurance infl uences in relation to fi re, given the fi nancial impact that even a small fi re can have, are even more prominent, with specifi c codes being produced such as ‘Fire Prevention on Construction Sites’, the joint code of practice on the protection from fi re on construction sites and buildings undergoing renova-tion. Published by the Construction Confederation and the Fire Prevention Association with the support of the Association of British Insurers, the Chief and Assistant Chief Fire Offi cers Association (now CFOA) and the London Fire Brigade, the joint code provides clear guidance on minimum standards for the construction industry relating to fi re safety management.
Compliance with the code for insurance purposes is often included as part of contract terms to secure insurance cover. Therefore if the code is not followed it may result in a breach of contract and thus could result in insurance ceasing to be available or in certain circum-stances it may result in a breach of legislation requiring the provision of insurance.
The organisation SIESO (Sharing Information and Experience for Safer Operations) has identifi ed that over 50% of businesses that have been involved with a major incident have ceased trading within 12 months of the
Year Number of Total fi nes Average fi ne ending convictions imposed per prosecution
2001 495 £5 573 525 £41 676
2002 530 £8 225 466 £58 167
2003 451 £4 710 051 £39 888
2004 512 £8 928 600 £45 882
2005 396 £6 857 200 £40 895
Table 1.5 HSE prosecution of employers
Actions/options HSE/LA/FA FA alterations HSE/LA/FA
improvement/enforcement prohibition
Action of appeal Suspends the operation of Suspends the operation of Does not suspend the operation the notice until hearing the notice until hearing of the notice until hearing Court options Cancel, affi rm, affi rm with Cancel, affi rm, affi rm with Cancel, affi rm, affi rm with
modifi cations modifi cations modifi cations
Table 1.4 Consequences of appealing within 21 days against notices
Note: although there is provision to appeal against a notice relating to switches for luminous discharge tubes, the RRFSO fails to mention whether the notice remains in force during the appeal.
Fire safety foundations
incident. This is in part due to the supply chain continu-ing to require commodities and that if one organisation (having suffered an incident) cannot deliver then an alternative will need to be utilised.
Following a number of recent large scale disasters (Buncefi eld Oil Depot, Festival Fireworks Storage facility/
factory) statistics have unfortunately been proven correct for those operating in close proximity to the disaster areas. Many smaller organisations have failed to recover and have closed their operations for good.
Financial consequences to industry (Fire Protection Association fi gures)
Figure 1.26 identifi es the results for statistical analysis gathered from the Fire Protection Association who have close ties with the British insurance market. The stat-istics indicate the estimated losses as a result of fi res (£250 000 and above) for the UK in 2004–2005. It should be noted that these estimates show only the direct fi nan-cial costs and exclude the losses that will result from loss of business and brand image.
1.6 The nature and sources of safety information
Gathering, using and giving information relating to safety is critical to successful safety management. In this sec-tion we will review the nature and sources of informasec-tion available, which will not only assist in providing informa-tion for this programme but will also provide informainforma-tion and a direction for future reference.
1.6.1 Internal information
The majority of organisations have a variety of sources of information at their fi ngertips. These will range from
reactive data such as the information gathered from acci-dent reports/investigations, inciacci-dent reports, fi re alarm/
detection actuations, damage reports and breakdown maintenance reports and records to active (proactive) information gathered from safety surveys, staff question-naires, inspection reports, planned preventive mainten-ance reports, health and safety reviews and audits.
The nature of information will be discussed through-out this book and the above paragraph identifi es only an outline.
Risk assessment records will provide a rich source of information from which an organisation can draw. In addition, an organisation’s health and safety policy, its written procedures and safe systems of work will also provide a valuable source of information, together with any posters and information sheets produced internally.
Internally it is anticipated that much information will be drawn from safety advisers who have a key role in gathering and passing on safety information. Further information is likely to be available from the facilities management team, human resources/personnel depart-ment, occupational health teams, etc. Each company will differ in the roles that its departments or teams undertake and the size of the organisation.
1.6.2 External information
As can be seen from the preceding section all organ-isations are required to provide safety information in relation to the products and services that they manu-facture, produce or provide. Information can therefore be gleaned from manufacturers’ documentation and records, e.g. sound levels, chemical hazards, weights of items and fl ammability ranges.
An extremely valuable source of information is HSE Books who produce free publications, guidance documentation and report books.
The HSE and the Department of Communities and Local Government (DCLG) provide information by way of their respective websites which can include reactive data such as health, safety and fi re statistics, together with a wealth of information relating to safety campaigns.
The Offi ce of Public Sector Information (OPSI) provides information relating to legislation and actual statutes and can again be accessed via the world-wide web.
The legislation itself, together with any ACoP or Guidance produced by the HSE, is an equally valuable source, as are the Fire Safety Guides produced by DCLG.
The British Standards Institute (BSI) can also provide a valuable source of information regarding items such as the requirements for safety management systems, together with physical standards such as those appertain-ing to emergency lightappertain-ing, etc.
Figure 1.26 The cost of fi re per initiation source for 2004/2005
0 20 40 60 80 100 120 140
deliberate ignit ion electrical
friction, heat, sparkssmoking m ateri
als
naked lightcooking
spontaneous com bustion
oil firew
orks
LPG cutting equ ipment
spread from
secondary fire Estimated loss £M
The Institution of Occupational Safety and Health (IOSH) and the Institution of Fire Engineers (IFE) produce monthly journals, as does the British Safety Council, all of which provide a valuable insight into specifi c safety areas.
In relation to fi re the Passive Fire Protection Federation (PFPF) and the Fire Protection Association (FPA) also produce a range of industry information and guidance on both practical and managerial aspects of fi re safety.
1.7 The basis of a system for managing safety
Over a number of years a variety of management sys-tems have been produced, any of which can be utilised to assist in establishing a safety management system.
Many organisations are familiar with BSEN ISO 9001, a quality management system which can be accred-ited by an external organisation. The same can be said for BSEN ISO 14001, the environmental management system.
The production of an integrated management system such as OHSAS 18001 (Occupational Health and Safety Assessment Series) has enabled mapping to be achieved between the systems mentioned above and a health and safety management system.
While OHSAS 18001 has not been designated as a British Standard it has been produced by the British Standards Institution (BSI) to enable external validation of an organisation’s safety management system to be achieved.
Originally when fi rst published in 1994 the British Standard BS 8800, which is a guide to Occupational Health and Safety Management Systems, only concen-trated on a choice between HSG65 and ISO 14001. In Figure 1.27 The provision of fi re safety information
Continual improvement
Management review
OH&S policy
Checking and corrective action
Planning
Implementation and operation
Figure 1.28 OHSAS 18001
its review and update in 2004 it also shares common management system principles with ISO 9000 series, ISO 14000 series and is consistent with ILO-OSH 2001 (International Labour Organisation – Occupational Safety and Health) and OHSAS 18001.
A schematic view of each of the available systems has been included for reference within this book, although the system known as HSG65 produced by the HSE will be discussed in more depth.
The basic elements of each of the above systems include, in one defi nition or other, the same phases which are:
➤ Planning
➤ Performance
➤ Performance assessment
➤ Performance improvement.
The HSE’s guidance simplifi es these phases into ‘Plan, Do, Check, Act’ as detailed below:
Plan – this involves the setting of standards for safety management that refl ect legal requirements and the risks (risk assessment fi ndings) to an organisation.
Do – involving putting into place or implementing the plans to achieve overall aims and objectives set during the planning phase.
Check – the measurement of progress against the plans and legal standards to confi rm compliance.
Act – consider and review the status against the plans and standards and taking of action when appropriate.
Fire safety foundations
1.7.1 HSE’s Guide – Successful Health and Safety Management (HSG65)
HSG65 is based upon a framework comprising six core elements, each of these elements interacts with the others enabling a continuous improvement cycle to be obtained.
A brief outline of each element is described below.
Policy
The Policy sets a clear direction for the organisation in its aim to achieve successful and continuous improve-ment of its safety manageimprove-ment system. It also clearly identifi es the standards to be achieved in promoting and demonstrating its drive towards improved safety per-formance. As will be discussed in the following chap-ter it is evident that senior management are taking their responsibilities for the safe management of people and the environment seriously.
Organising
Organising for safety is more than allocating roles and responsibilities; it must also take into account how activi-ties that infl uence an organisation’s safety and its culture, such as the use of contractors, procurement of materials and the management of information imparted from the organisation, will affect its safety management.
Establishing both organisational and individual competencies and the involvement of staff at each level are key elements in effectively organising a company to manage safety effectively.
Planning and implementing
Establishing a clear health and safety plan based upon the analysis of risks (risk assessment) is an essential
Reviewing performance
Policy
Organising
Planning and implementing
Measuring performance Auditing
Figure 1.31 HSG 65 approach
Figure 1.29 BS 8800
External factors Internal factors
Initial and periodic status
review
Policy
Organizing Audit
Planning and implementing
Measuring performance
Information link Control link
Figure 1.30 ILO OSH
element of safety management. The risk assessment process will enable an organisation to prioritise and set objectives for short-, medium- and long-term strategies for controlling risk. Implementing the preventive and pro-tective measures identifi ed by the risk assessment proc-ess, setting measurable performance standards against which to measure the implementation programme must be seen as an essential element in producing an effec-tive management system.
Measuring performance
Performance measurement will include both active and reactive monitoring programmes; ultimately this moni-toring will enable an organisation to see how effectively it is managing health and safety from investigating an accident which seeks to identify how systems have failed through to actively monitoring safe systems of work, providing a benchmark from which to analyse the organisation’s ability to meet its short-, medium- and long-term goals.
Reviewing performance
The results from internal reviews which seek to bench-mark performance, both internally and externally, will enable the organisation to ensure that it is achieving the minimum legal standard in terms of compliance, or if it has set them, performance targets that meet its own standards, which may be higher than those required by legislation.
The review process is required by the MHSW Regulations RRFSO and thus to comply with the law must be undertaken. The results of an annual review should be made available to all stakeholders.
Audit
Each of the previously mentioned elements in the man-agement system must be audited to ensure that the performance of any one element does not have a det-rimental effect upon another. In order to achieve unbi-ased results the HSE believes that an audit should be conducted independently from those who can infl uence the safety management system, e.g. it would be virtually impossible for an internal safety team to audit its own management systems as in all likelihood they would have established many of the key elements.
Note: Students may wish to note that the requirement to manage under both the MHSW and the RRFSO are the same. However, they both differ from the guidance contained in HSG65 in that the regulations require that employers and responsible persons need only plan, organise, control, monitor and review. The need to establish a policy and audit the elements of the man-agement system is not explicitly mentioned in either the
MHSW or the RRFSO; however, as will be discussed later in this book they are critical elements required for successful safety management.
1.8 Case study
Prosecution of a fabrication company by Kent and Medway Fire and Rescue Authority (KMFRA) and the Health and Safety Executive (HSE).
A fi re in a fabrication company on 9 June 1999 resulted in the death of an employee. In Maidstone Magistrates’ Court on 3 July 2000 the company pleaded guilty to three breaches of fi re legislation. In tandem with the Kent and Medway Fire and Rescue Authority investi-gation and prosecution, the Health and Safety Executive also prosecuted under section 2 of the Health and Safety at Work etc. Act 1974. The investigation and subsequent prosecution was a classic example of two prosecuting agencies (HSE and KMFRA) working together.
The extended length of time between the fi re and the court case was due to the delay for an inquest into the fatality and the Crown Prosecution Service’s consid-eration of securing a conviction for ‘manslaughter’.
The charges, and subsequent guilty pleas, were based on the following:
Kent and Medway Fire and Rescue Authority One charge each on the basis that the company was found to be reckless in their failure to provide:
➤ Suitable fi re fi ghting and fi re detection
➤ Suitable emergency routes and exits
➤ Suitable maintenance arrangements.
Health and Safety Executive (HSE)
One charge based on the general duty of care under section 2 of the HSWA in that the company was negli-gent in their duty.
The resultant fi nes awarded were as follows:
➤ Failure to comply with the Fire Regulations – a total of £6000 with a contribution towards the costs of the fi re authority of £2500
➤ Failure to comply with the duties imposed by the HSWA – £10 000 for the one offence with a contri-bution of £1500 towards the costs of the authority.
A prominent feature of this case was the emphasis by the magistrates on the failing of a business to satisfy the legal and moral obligations to employees. The fact that