Current Law

The current law is scattered through a confusing range of legislation including the Management of Health and Safety at Work Regulations 1999, the Fire Precautions Act 1971 and other fire precaution regulations.

The major change made by the order is that fire certificates in respect of certain types of designated premises, such as offices, factories and certain types of hotels and guest houses, are no longer required.

These certificates are presently issued by the local fire authority and certify that specified fire safety requirements are met.

A fire certificate specifies the acceptable use of the premises, the requirements regarding the means of escape, alarms and fire fighting equipment and may also contain requirements in respect of maintenance and staff training. The proposed new regime aims to reduce administrative burden and in removing the need to apply for a fire certificate this aim may ostensibly be achieved.

However without the FA's involvement, some employers or occupiers may struggle to identify what precautions will be necessary. The onus will now be on the employer to make a judgment call as to what he considers to be the necessary fire precautions to protect his employees and also to comply with his legal duties.

Currently through a combination of the Management Regulations and the Fire Precautions (Workplace Regulations) 1997, employers are required to do an assessment of risks to health and safety, in order to identify measures that are needed for fire detection and fire fighting, emergency routes and exits and the maintenance of the workplace itself and the equipment required under the regulations.

Will the changes affect you?

Under the current regime, two separate organisations could be responsible for fire safety in respect of the same premises: the occupier for obtaining fire certificates (issued by the local fire authority, certifying that specified fire safety requirements are met); and the employer for conducting risk assessments. As the order places the responsibility for fire safety on "responsible persons", and requires risk assessments in respect of all non-domestic premises, some organisations may find they have additional obligations under the order.

The order creates one fire safety regime, with the aim of providing clarity and certainty for those who must comply.

However, given that the order may well pass on the nod, the clarity of the new regime will be of little advantage to those who are not aware of the new obligations it imposes upon them.

The obligations contained in the order are very similar to those in the Management of Health and Safety at Work Regulations 1999 and which currently also include some fire safety obligations. The order includes duties to appoint a competent person, to provide information to employees and to those from outside your undertaking and to cooperate and coordinate with any other responsible person.

There are numerous offences under the draft order.

These range from failure to comply with the obligation to take the necessary fire precautions, to failure to carry out a fire risk assessment and giving false information to an inspector investigating failures to comply with the regulations.

The penalties vary, but in relation to offences dealt with in the Magistrates' Court the maximum penalty is £5,000. In the Crown Court the fine level is unlimited and some offences attract a penalty of two years imprisonment. Failure to comply with the order can lead to other types of difficulties for employers, since a breach can lead to a cause of action for injury or damages suffered by an employee.

The enforcement body in respect of the order is generally speaking the fire authority except in the case of construction sites and certain other exceptions where the enforcing body will be the Health and Safety Executive (HSE).

As matters currently stand, enforcement may be split even in respect of one set of premises between the fire authority and those who enforce general health and safety legislation, which for many employers will be the local environmental health officers. Those workplaces that currently do not require a fire certificate will therefore need to become familiar with the attitude and approach of an entirely new enforcement agency in the shape of the local fire brigade.

Other enforcement action can also be taken pursuant to the order, in the form of notices.

These notices may require certain works to be carried out to ensure the safety of persons, or as a more severe form of enforcement, a notice could be served prohibiting or restricting the use of premises until they are made appropriately safe.

Service of such a notice would clearly prevent a business from being able to operate from the premises or to allow any employees on site. It goes without saying that this could lead to huge losses for the company, in addition to the cost of carrying out the prescribed work. Failure to comply with these notices is likely to be considered an extremely serious offence.

What next?

It is important that all employers, occupiers and owners of premises become familiar with the order and keep a close eye on its coming into force. In the meantime, you should be preparing for its implementation. For further information, contact your fire authority or the HSE.