From the courts: what you need to know
Case law: with record fines imposed and increased enforcement
activity taking place, could now be a good time for organisations
to renew their fire risk management and safety procedures?
The cases
In November 2009, New Look Retailers were fined £250,000 and
£150,000 respectively for failing to provide a “suitable and
sufficient” fire risk assessment and adequate safety training for
staff, following a fire at one of its shops in London’s Oxford
Street.
Southwark Crown Court heard how the shop had been packed with
early evening shoppers when smoke was seen coming from a
second-storey window. The court was told that even though the alarm
sounded, it was mysteriously turned off and customers were allowed
to continue shopping. Even when the alarm was reset and began
again, staff failed to react.
The fire gutted the building, which later had to be demolished.
It started in the second floor storeroom but fire officers couldn’t
establish the cause.
Although no-one was injured, Judge Geoffrey Rivlin QC said the
fire could have been a “disaster almost too awful to
contemplate”.
The £400,000 fine is the largest imposed on a British company
for fire safety breaches since the Regulatory Reform (Fire
Safety) Order 2005 was made law in 2006. It is also thought to
be the biggest ever financial penalty for such breaches.
The New Look prosecution is one of a number of recent cases
involving fire safety incidents that have resulted in hefty fines
being imposed by courts. Veolia ES Cleanaway (UK) Ltd was fined
£100,000 and £50,000 respectively for failing to take appropriate
measures and to provide information and training to workers
following a chemical fire that closed parts of the M65 and M6.
There was also the recent imprisonment of a father and son for
manslaughter for seven and five years respectively, after
improperly stored fireworks killed two firefighters during a fire
at their company site.
Although these cases followed major incidents, fines can also
come about as a result of inspections. ATS Euromaster was fined
£2,000 for blocking a fire exit, £2,000 for failing to light an
escape route, £1,500 for inadequate training and £1,000 for failing
to carry out a suitable risk assessment.
There have been two such cases even in the last few weeks. On 20
April 2010, Tesco were fined £95,000 and ordered to pay £24,321 in
costs after pleading guilty to five breaches of the 2005 Order. The
prosecution was brought by London Fire Brigade in relation to a
number of deficiencies, including a failure to ensure escape routes
were kept clear for safe evacuation of the building in an emergency
and inadequate fire separation in the building due to the doors
being wedged open.
On 11 May 2010, Paul Ashley, of P and Ashley Timberworks,
pleaded guilty to eight breaches of the 2005 Order at Chester Crown
Court. Mr Ashley was fined £80,000 and ordered to pay costs of
£50,300 to Cheshire Fire and Rescue Service.
The Court heard that timber was found to have been piled
dangerously high in the yard and combustible materials were
blocking escape routes. The company was also found to be using
various appliances with electrical faults, had inadequate risk
assessments and the fire alarm system was deemed unsuitable. Mr
Ashley was alleged to have repeatedly refused to carry out fire
safety checks on the business despite numerous visits from Cheshire
Fire and Rescue Service personnel.
The above cases highlight the exposure of both individuals and
companies of all sizes to prosecution and potential large fines
under these provisions. Recent prosecutions show a pattern of
extraordinarily high levels of fines being levied by courts, which
are more akin to those imposed in fatal accident prosecutions, not
those involving technical or non injury related breaches.
Legislation and enforcement
The Regulatory Reform (Fire Safety Order) 2005, which
came into force in October 2006, consolidates and replaces more
than 100 separate pieces of overlapping legislation and regulation,
simplifying fire risk management. A risk-based approach is utilised
for fire safety, and enforcement has followed the same
approach.
A recent statement by the Chief Fire Officers Association (CFOA)
said: “This guides FRS (Fire and Rescue Services) to inspect those
premises that present a high societal risk, such as hospitals,
hotels and residential care homes prior to inspecting premises such
as offices and shops, although, of course, limited sampling of
these premises should take place.”
However, the perception that enforcement activity in the
commercial sector is rare should be dispelled when you take into
account that between 2007 and 2008, 29,000 informal notices, 3,840
enforcement notices and 443 prohibition notices were issued. There
were also 42 prosecutions brought in the same period.
Fire safety enforcement is expected to remain high on the
regulatory agenda. The enforcing authority will usually be the
local fire and rescue authority and enforcement will normally be
carried out by a fire inspector, but can also be carried out by an
employee of the authority who’s authorised in writing by an
inspector.
Inspectors have wide-ranging powers, including entering and
inspecting premises, taking copies of documents and records, and
taking samples of substances to determine their fire resistance or
flammability.
The enforcing authority can serve:
- alteration notices which identify serious risks posed and
requiring proposals for improvement to be submitted by the
responsible person
- enforcement notices requiring the responsible person to remedy
a specific failure and directing suitable measures to remedy the
failure
- prohibition notices for serious risks immediately prohibiting
the use of the premises for the purposes which give rise to the
risk.
The maximum penalty for an offence under the order is a £5,000 fine
in a Magistrates’ Court, or an unlimited fine in a Crown Court
and/or imprisonment for up to two years.
It’s an offence to fail to comply with any of the duties or
requirements imposed by the Fire Safety Order where this gives rise
to a risk of death or serious injury due to fire. Further offences
include failure to comply with the requirements of alteration,
enforcement or prohibition notices.
Individual liability
Senior figures in an organisation can potentially be guilty if
an offence was committed with their consent, or due to their
neglect. This highlights that implementation needs to be very
thorough to avoid potential prosecution. An employee can be
prosecuted for failure to comply with their duty to his or her
employer where this places people at risk of death or serious
injury in the event of a fire.
Important tips
- Don’t ignore risks posed by arson when preparing your risk
assessment – arson is the biggest single cause of fires in the
UK
- Be sure to identify external potential fire sources (for
example, neighbouring premises) when preparing your risk
assessments
- Make sure staff are given fire safety information at induction,
as well as periodic ‘refreshers’
- Make sure you document every stage of the risk assessment
process, keep records of training, procedures and assessments and
make sure these are implemented and available to both staff and
authorities
- Don’t ignore the basics: warning systems, training, prevention
measures, providing extinguishers and the signing and lighting of
emergency exits.
Our thanks to DWF in helping write this article.
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