Fire safety: Underappreciated Existing Obligations & Upcoming Changes

In the wake of the Grenfell Tower fire tragedy, the government and construction sector have reconsidered many aspects of building safety and special consideration has been given to fire safety. To target the factors which contributed to Grenfell and to bolster safeguards, the government has introduced reforms and proposed further legislation.

There’s been a lot of discussion about that new legislation, in the form of the Fire Safety Bill, but existing legislation should not be overlooked by employers, contractors, building owners and public authorities, as these laws continue to place fire safety obligations on parties involved in building ownership and maintenance.

Here, Philippa Jones, solicitor at law firm Womble Bond Dickinson takes a look at the existing legislation, if business is complying with it and what changes does the new bill make to propose to this.

Existing legislation

Fire safety in all non-domestic premises in England and Wales (including communal areas of residential buildings with multiple homes, but excluding houses occupied as single private dwellings) is regulated by the Regulatory Reform (Fire Safety) Order 2005 (the Order). Scotland and Northern Ireland have their own legislation regarding fire safety.

The Order came into effect on 1 October 2006 and, broadly, it requires any person who has a level of control over premises to take reasonable steps to assess the risk from fire and put in place appropriate control measures including measures to ensure people can safely escape the premises in the event of a fire occurring.

Are you a “Responsible Person”?

The Order imposes various duties in relation to fire safety on each Responsible Person ie:

1. the employer, if the premises are a workplace and the workplace is under the employer’s control,
2. the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by them of a trade, business or other undertaking (for profit or not),
3. the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking,
4. the trust, academy chain, or local authority of a public building eg a school or hospital.

Identifying the parties that fall under these definitions is not straight forward. For example, despite a contractor being employed by the employer to undertake works at the premises, the contractor itself would be a Responsible Person as it has control over the premises to carry out the works, and as such they would have additional responsibilities and potential liabilities for any breaches of the Order.There can be more than one Responsible Person with obligations under the Order.

What must a “Responsible Person” do?

The duties of a Responsible Person include:

1. undertaking fire risk assessments,
2.  taking fire precautions to ensure the safety of employees and premises,
3. making arrangements for the effective planning, organisation, control, monitoring and review of preventive and protective measures,
4. ensuring that routes to exits and emergency exits are kept clear at all times,
5. ensuring equipment is maintained in an efficient working order and in good repair,
6. co-operating and co-ordinating with other Responsible Persons to manage risks.

Contractor’s additional requirements

As mentioned above, contractors carrying out works at a premises, despite not being the owner of those premises, are likely to fall within the definition of a Responsible Person because they have a degree of control over the premises for the purposes of carrying out their works.

If you are a contractor, steps you should take include:

1. at the start of any works, consider if the Order applies, including establishing whether the building is a private residence or not,
2. carry out a risk assessment, and nominate a competent person to implement any fire safety measures arising from that assessment –  you should be transparent,
3. bear in mind that there is an expectation that the contractor will notify the premises owner of any perceived fire safety risks identified by itself or third parties (eg failures of equipment to pass fire safety tests) and to cooperate with the owner regarding measures to address them,
4. consider the risks posed by the storing of potentially flammable materials near fire exits even if this is in a separate part of the premises to where the works are being carried out, and
5. remember that since the owner also continues to have control of premises more generally, your control of the premises may not be exclusive – owners are also Responsible Persons, and where there is more than one Responsible Person, you must both co-operate and co-ordinate with each other over fire safety risks.

Failure to comply – enforcement and penalties

Fire safety legislation is generally enforced by Fire Safety Enforcement Officers from the local Fire and Rescue Service but the Health and Safety Executive is the enforcing authority for any work place which is on a construction site.

Enforcement Officers can enter any workplace at any suitable hour, without notice. They conduct inspections to review the workplace, work activities, and management of fire safety.

Non-compliance with the Order can lead to enforcement action including service of Alterations Enforcement and Prohibition Notices and prosecution of corporate bodies and individuals.Fines can be substantial and sentences of imprisonment can be imposed on individuals.Additionally there could be other significant consequences including reputational damage as well as the potential human cost of a fire.

The new Fire Safety Bill

The new Fire Safety Bill, once it becomes law, will strengthen the existing legislation on fire safety. It will:

1. give greater clarity over responsibilities for fire safety in buildings containing more than one home,
2. enable enforcement authorities to hold building owners to account for cladding related non-compliances,
3. give the Secretary of State for Housing, Communities and Local Government powers to amend the list of qualifying premises that fall within the scope of the Order by way of secondary legislation, enabling the government to respond more quickly to developments in the design and construction of buildings,
4. place an increased focus on evacuation plans to ensure residents understand these strategies.

The Bill clarifies that, for any building containing two or more domestic premises, the Order applies to the building’s structure and external walls and any common parts, including the front doors of residential parts. It also clarifies that external walls include “doors or windows in those walls” and “anything attached to the exterior of those walls (including balconies).” These amendments are expected to provide for increased enforcement action, particularly where remediation of aluminium composite material (ACM) cladding is not yet taking place or the building does not have ACM cladding but is still defective.

Better understanding of fire safety legislation

The Fire Safety Order is often an overlooked piece of legislation and there is a general lack of understanding regarding the responsibilities of Responsible Persons and enforcement, despite the Order being in force for many years.

Better self-education for building owners and contractors about their responsibilities for fire safety will lead to safer communities.

Going forward, construction professionals should be mindful of their continuing obligations under the Order, review sites regularly and report changes which could affect fire safety.

Consideration should be given to whether works being performed make a contractor a Responsible Person and whether responsibilities can be shared with building owners and how contractors can discharge their cooperation obligations to ensure fire risks are avoided.

The industry should also closely watch out for further developments in fire safety, including the progress of the Fire Safety Bill, and its obligations under that.

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