Legal Ignorance

Ignorance of the law is no excuse

Following recent cases brought before the legal process in the UK, it would appear that a number of people in a position of authority, therefore the ‘responsible person’ as specified in the Regulatory Reform (Fire Safety) Order 2005, are either not aware of what their legal responsibilities are, or they are just treating them with a flagrant disregard. This is often done in the hopes that they will not be caught or, if they are, they will be treated lightly by the judicial system.  As with many other breaches of legal responsibilities, it is done in an attempt to save money.  It is seen as a kind of a gamble.  The odds of being caught and prosecuted are weighed against the cost of actually complying with the law in the first place.

Perversely, what these people are doing is carrying out a risk assessment of their actions or inaction. As we know, a risk assessment looks at the hazard, in this case a fine or imprisonment.  It then looks at the risk, in this case the likelihood of being caught and the severity of the outcome.  The more people who are caught red-handed and then handed a large fine or prison term, the more the odds shift in favour of the judicial system and away from any benefit to be gleaned by the wrong-doer.

So, why do these cases come before the courts time and again?
Taking aside those who deliberately disregard the law or feel it does not apply to them, we are left with people who actually do not know that what they are doing, or omitting, is wrong. Sadly in either case, if such people are not caught and brought to justice, the victims of their lack of compliance are innocent members of the public or, in some cases, employees.

Over the years, the law has evolved in all respects. In the case of fire law, we started with paragraphs within such Acts as the Hotels & Boarding Houses Act 1964, the Factories Act 1961 and the Offices Shops and Railway Premises Act 1963. These formed part of a large act which covered other matters not related to fire safety. In an attempt to bring it all together, we acquired the Fire Precautions Act 1971. This was when the fire authority would issue a Fire Certificate to certain premises which fell within the categories above and if they employed more than a certain number of people. This continued for a number of years during which the Workplace Regulations also came into effect. This required employers to carry out their own risk assessments for workplaces which did not come within the scope of other existing legislation.

Then after much research and development by the Government, we finally arrived at the Regulatory Reform (Fire Safety) Order 2005 which embraced every type of premises except for a single private dwelling. It conferred a responsibility upon the ‘Responsible Person’ to carry out a risk assessment and put right or mitigate any shortcomings which were identified.

So, this is where we are now. However it would appear that a number of people are continuing in blissful ignorance of the law and their legal obligation to comply with it. It is a basic principle that ignorance of the law is no excuse. If it were, then that would be everyone’s first line of defence and no legal cases would progress beyond the investigation stage. As with the Health and Safety at Work Act (which is 40 years old this month) the safety for complying with the law is the responsibility of everyone in the workplace to one degree or another. However, when it comes to enforcement, the buck stops with the Responsible Person who will be brought before the courts if any non-compliance issues are identified.
Personally, I believe that to use the excuse of not being aware of what one’s legal obligations are is easily exposed.

All buildings have certain fire safety elements built in. These are known as ‘passive fire protection’. These are the walls, doors, ceilings, floors and windows that comprise the building. Depending upon what the proposed use of the building is, these elements of construction will afford some degree of protection to the occupants in the event of there being a fire. They will either limit the spread of fire within the building or they will protect the escape routes for the occupants so that they may leave the building safely.

Then there are the things which are added to the building structure itself to further enhance the fire safety of those people within it. These are known as ‘active fire protection’. This includes fire alarms, emergency lighting, fire extinguishers and so on.

Finally, the third element is ‘management’. Anyone who is responsible for a building has to manage those facilities provided and the people within the building to achieve a safe place to be for whatever purpose.

Now, I cannot see how anyone can be in control of a building where people work, sleep, go to for entertainment or shop and not be aware that there must be some rules out there somewhere which they should obey to stay the right side of the law. Any reasonable person who sets up a business or takes on the management of any building where other people resort to should make it their duty to ascertain, before they start, what the rules and regulations are in respect of the operation they propose to carry out. To blunder on regardless, displays such a worrying and dangerous attitude to the safety of themselves and others that they deserve nothing less than the full force of the law to come down upon them.

Chris Fitzgerald MIFireE, MIIRSM, Tech IOSH
Senior Fire and Health & Safety Consultant. Quantum Compliance

 

Record custodial sentence for breaching fire safety

There is no denying that all breaches of health and safety legislation are treated extremely seriously by the courts.

A recent sentence passed down by Blackpool Magistrates now holds the record for the longest custodial sentence handed down pursuant fire safety
legislation.  While the circumstances regarding this case are extreme, the record sentence serves as a useful reminder of the substantial penalties that courts can impose on businesses (and in some cases the directors and employees).

In June 2014, Peter Metcalf was arrested for numerous breaches of fire safety law at his Blackpool sea front hotel which it was alleged;

‘posed a real risk to the life of its inhabitants’.

The south promenade hotel was initially thought to be derelict, however the Blackpool Council were alerted when it became apparent four lodgers were in residence at the premises.

The council commenced an investigation with help from Lancashire Fire and Rescue Service which revealed 15 separate breaches of fire safety law
pursuant to the Regulatory Reform (Fire Safety) Order 2005, including:

  • Lack of emergency lighting
  • Lack of a fire detection system
  • Lack of evacuation plan
  • All fire exits were blocked or locked (with chains) bar the entrance
  • The entrance had gas cylinders and combustible material piled in close proximity potentially leaving no escape in the event of a fireThe owner of the hotel, Mr Metcalf was found guilty of all 15 charges and handed an 18 month jail term and a £5243 fine.

Quantum Compliance’s Fire Safety Expert Comments

Stagering number of businesses are ignorant of Fire Safety Laws

According to a telephone survey of 580 restaurateurs, publicans, takeaway owners and owners of office-based businesses:

  • 90% of all small-business owners were unaware of their responsibility to conduct a fire-risk assessment on their premises
  • 86% of business owners with small offices were unaware of this requirement
  • 39% of pub landlords were unaware

The survey was conducted by FireUK who provide fire-risk assessments across the UK.  They found that many businesses with members of the public regularly on their premises also have no named responsible person in charge of fire safety.

“We are shocked to the core by these figures,” said FireUK spokesperson Mark Hall. “We thought we would find a few companies that fell outside the law, not whole sectors of small businesses playing Russian roulette with people’s lives.  The fact that some pubs don’t know the law is terrifying,” he continued. “They are playing with fire, quite literally. There’s a huge blind spot among business owners who don’t know where their responsibilities lie.”

The survey found that a staggering ninety percent of small businesses with fewer than 10 employees were failing to conduct appropriate fire-risk assessments or follow basic fire-safety procedures.

 

Ignorance, confusion and neglect
FireUK’s survey reveals a mixture of ignorance, confusion over the regulations and willful neglect.  Some business owners admitted they were unaware that fire safety legislation applied to them, particularly those in smaller rented units who often assumed that the building owners were ultimately responsible instead.

Budgets being tight were a factor and some business owners thought that safety was a secondary consideration during these times.  Some business owners even put their trust in their staff escaping from a fire on their own initiative.

There were a varied response from business owners with some explanations as follows:

“We’re renting this space. Surely that’s not our problem?”
“I thought it only applies to big companies”
“We haven’t got the money for that kind of thing”
“We’ve only got a couple of staff, they’ll get out alright”
“I work from an office at the bottom of my garden. I’m not sure what the law is.”

 

Legal requirements
Legal requirements state that:

  • All employers, business owners, or landlords take responsibility for fire safety in the workplace
  • The so-called ‘responsible person’ must carry out fire reviews, identify risks and put safety measures in place
  • Failure to do so can result in fines or even prison sentences

To hear from our Fire Safety expert, Chris Fitzgerald, read his comments here.

For more information from the survey carried out please visit IFSEC Global.com

 

 

Casualties on the roads of Great Britain

Provisional statistics concerning road casualties in Great Britain in 2013 have been published by the Department for Transport.  They show that overall road deaths are down by 2 per cent.

Main findings include:

  • the number of pedal cyclists killed dropped by 8 per cent to 109
  • the number of seriously injured cyclists fell by 2 per cent to 3,143 – this is the first decrease in seriously injured cyclists since 2004
  • the number of slightly injured cyclists rose by 3 per cent to 16,186
  • there was a 21 per cent decrease in the number of children killed in reported road traffic accidents, reversing the increases seen in 2011 and 2012
  • a total of 48 children (aged 15 or under) were killed, compared with 61 children in 2012
  • total child casualties on the road (15,756) fell by 9 per cent to the lowest total since detailed records began in 1979
  • there was a slight increase of 1 per cent in motorcyclist deaths, which rose to 331 in 2013
  • the number of people killed on motorways increased by 14 per cent to 100 in 2013 (traffic on motorways did increase by 1.5 per cent)
  • in 2013, 21,657 people were seriously injured in road accidents. This total is 43 per cent lower than in 2000. Seriously injured casualties have decreased steadily since 2000, with 2010-2011 being the only year on year increase
  • the total number of casualties of all severities in 2013 was 183,670. Total reported casualties have also decreased steadily since 2000
  • a total of 138,660 personal-injury road accidents of all severities were reported to the police in 2013. This total is the fewest reported accidents in a single year apart from 1926 and 1927, the first two years national records were kept.

Car occupants:

  • car occupant fatalities in 2013 decreased to 785, down 2 per cent compared with 2012 and 44 per cent compared with the 2005-2009 average
  • seriously injured car occupants fell by 7 per cent to 7,641
  • total reported casualties among car users were 109,787; 8 per cent fewer than 2012
  • car and taxi traffic slightly decreased by 0.1 per cent over the same period.

Pedestrians:

  • there were 398 pedestrian deaths, 5 per cent fewer than in 2012
  • the number of seriously injured pedestrians decreased by 10 per cent to 4,998
  • both killed and seriously injured pedestrians returned to roughly the same levels as in 2010
  • there were a total of 24,033 reported pedestrian casualties in 2013, down 5 cent in comparison with 2012.

 

“These figures are good news and continue the long term reduction in death and injury on our roads. However, even with these improvements, there are around 5 deaths and 500 casualties a day on the roads, which shows there is still much work to do.  We are likely to see more people walking and cycling in the coming years and we need to ensure people are able to enjoy these activities safely. This will require improving the environment by expanding the number of 20mph roads, safe pedestrian and cyclist routes and increasing driver awareness of the importance of sharing the road safely with these vulnerable groups.”

Kevin Clinton, head of road safety at the Royal Society for the Prevention of Accidents (RoSPA)

 

Neglecting Fire Safety Duties resulting in Fines

Property managers are reminded of the importance of fire safety duties after a firm of estate agents in Bexhill have been fined more than £28,000 and ordered to pay court costs in excess of £10,000 after being found guilty of breaching fire safety regulations in properties that they managed.

Trainmerit were convicted of fire safety breaches at two properties in Bexhill, which they had previously been warned to rectify.  Trainmerit trades at Maltby’s Estate Agents.

East Sussex Fire & Rescue Service (ESFRS) inspected the premises following a fatal fire in 2011.  They discovered inadequate fire protection, lack of separation of fire escape routes and fire alarms, as well as no emergency lighting.  During this fire, an occupant became trapped on the top floor and required rescued by firefighters.

It was understood by ESFRS that the agents had not taken any steps to improve fire safety at the properties for more than four years and due to this and that they had had a fatal fire, the ESFRS felt they had other choice than to prosecute the company.

In summary, the Magistrates commented that they had treated the offences with the utmost seriousness.

“East Sussex Fire & Rescue Service would like to remind all managing agents and others with responsibilities for property management, of their legal responsibilities to protect occupants against the risks from fire. The public should continue to be reassured that we take any breaches of fire safety very seriously, and especially so where the premises provides sleeping accommodation”.

Group Manager Richard Fowler, Head of Fire Safety at ESFRS

Under the Regulatory Reform (Fire Safety) Order 2005, commercial buildings, non-domestic and multi-occupancy premises in England and Wales are already forced to undertake a ‘suitable and sufficient’ fire risk assessment.

 

Firefighters Strike

The Fire Brigades Union (FBU) has announced that firefighters in England and Wales will join hundreds of thousands of other public sector workers taking strike action (started on Thursday 10 July).

It is the long-running dispute over firefighters’ pensions that will see a further day of strikes at the same time as a walk out by local government workers, teachers and civil servants over a range of issues, including attacks on pay and pensions and workloads.

The strike will have lasted between 10am and 7pm on the 10th July and will be the fifteenth in the FBU’s campaign.

Further Strike Dates added
The FBU have also announced further strikes week commencing the 14th July which will last for 8 consecutive days.
Strike dates and times are listed as follows:

Thursday 10 July 10.00-19.00
Monday 14 July 06.00-08.00 and 17.00-19.00
Tuesday 15 July 06.00-08.00 and 17.00-19.00
Wednesday 16 July 06.00-08.00 and 17.00-19.00
Thursday 17 July 06.00-08.00 and 17.00-19.00
Friday 18 July 06.00-08.00 and 23.00-01.00 on Saturday 19 July
Saturday 19 July 11.00-13.00 and 23.00-01:00 on Sunday 20 July
Sunday 20 July 17.00-19.00
Monday 21 July 06.00-08.00 and 17.00-19.00

Industrial action has been announced by the Fire Brigades Union.  It is seen that the timing is intended to cause disruption to brigades in arranging cover, whilst being at a time of low demand to preserve public safety.

The Fire Brigade contingencies to deal with this include:

  • cover by either private contractors or internally trained volunteers with training from the extremely basic through to full firefighter initial training, as little as 10-25% of normally available appliances will be running in some brigades
  • there will be no lift rescues
  • there will be no animal rescues
  • there will be no response to automatic fire alarms, a confirmed fire call from site will be required
  • the military are not being used except in the event of a major incident when specialist teams may be deployed

There is likely to be no increased life risk during this time as legislation is in place to protect occupants and ensure their escape without resort to external assistance.  It is advisable that from a property protection point of view additional controls are taken, these may include the suspension of hot works, increasing fire patrols, increasing waste collections, etc.

Information taken from the FBU website

Property managers reminded of fire regulations

A firm of estate agents in Bexhill have been fined more than £28,000 and ordered to pay court costs in excess of £10,000 after being found guilty of breaching fire safety regulations in properties that they managed.

Trainmerit, which trades at Maltby’s Estate Agents, were convicted of fire safety breaches at two properties in Bexhill, which they had previously been warned to rectify.

Following a fatal fire in 2011, East Sussex Fire & Rescue Service inspected the premises and discovered inadequate fire protection, lack of separation of fire escape routes and fire alarms, as well as no emergency lighting. During the 2011 fire, an occupant became trapped on the top floor and had to be rescued by firefighters.

Due to the fact that the agents had not taken any steps to improve fire safety at the properties for more than four years, and ultimately had had a fatal fire, ESFRS felt they had other choice than to prosecute the company.

Summing up, the Magistrates commented that they had treated the offences with the utmost seriousness.

Group Manager Richard Fowler, Head of Fire Safety at ESFRS said:

“East Sussex Fire & Rescue Service would like to remind all managing agents and others with responsibilities for property management, of their legal responsibilities to protect occupants against the risks from fire. The public should continue to be reassured that we take any breaches of fire safety very seriously, and especially so where the premises provides sleeping accommodation”.

Commercial buildings, non-domestic and multi-occupancy premises in England and Wales are already forced to undertake a ‘suitable and sufficient’ fire risk assessment carried out under the Regulatory Reform (Fire Safety) Order 2005.

Information taken from the Fire Industry Association

Bus firm fined £150,000 after death

A mechanic was fatally injured when he was crushed between two buses in what safety inspectors called “a dreadful tragedy”.

The bus operator West Midlands Travel – a subsidiary of National Express Group – was fined £150,000 after a crown court sentencing hearing on the 27th June, the Health and Safety Executive (HSE) said.

In October 2011, assistant mechanic Lee Baker was crushed against a bus at the firm’s Carl Street depot in Walsall, West Midlands. His injuries claimed his 24 year old life and he died in hospital in February 2012, having never regained consciousness.

The bus company said the thoughts of its staff were with Mr Baker’s family and it fully accepted the fine, speaking after the hearing at Wolverhampton Crown Court,

Mr Baker, an employee since 2006, was working a night shift with a colleague when the incident happened. Whilst trying to move a bus a short distance, the automatic safety brake was left disengaged and the bus rolled towards the pair. Mr Baker’s colleague managed to get out of the way but the father-of-one was not so lucky and “was crushed between the two vehicles”, an HSE spokesman said.

Mr Baker sadly leaves behind his partner Donna Perigo and young daughter Katie, who was only a year old when the accident happened.

The HSE investigation found that employees were not safely trained to manually move buses, allowing some workers to push them. West Midlands Travel had previously admitted failing to ensure health and safety at work and failing to make a proper risk assessment when pushing buses. They employ 5,000 staff.

Inspectors also concluded that a towing operator was available to move buses in the depot, but only supervisors had been shown how to call them out. “This was a dreadful tragedy and was devastating to Mr Baker’s family. It is clear the failings of West Midlands Travel contributed significantly to this young man’s death.” HSE inspector Eve-Marie Edwards said.

Mr Baker’s partner Ms Perigo said: “Nothing will ever bring Lee back. My main aim has always been to prevent something like this happening again. Lee’s death has been tough on all of us. We will never forget what has happened but now we can at last put it to one side and focus on the future.”

A National Express spokesman said: “Firstly, it is important to say that our thoughts are with Lee Baker’s family on what has been another difficult day for them. We respect the judge’s decision and the fine awarded in this case. We also welcome the judge’s comments on our excellent overall safety record as a major employer.”

 

 

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Elf and Safety – July 2014 Newsletter

 

 

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July 2014 NEWSLETTER

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5 Year Old Girl Crushed

Swansea based company fined

A five-year-old girl was crushed to death by an electric gate in Bridgend on July 3rd 2010 and a Swansea installation firm and a Cardiff maintenance company have been sentenced for serious safety failings. Karolina Golabek was killed when she became trapped between the closing edge of the gate and the gate post outside flats near her home.

Ministry of Justice announce a Bill to curb ‘elf and safety’ culture  

The Secretary of State for Justice has announced a bill that intends to reduce the health and safety ‘jobsworth’ culture .

In a blog for Conservative Home, Chris Grayling reveals that The Social Action, Responsibility and Heroism Bill (SARAH), is intended to remove the bureaucracy that can deter people from doing good deeds.

Mr Grayling argues that people are often put off from doing the “right thing” out of fear that they will end up facing a lawsuit for negligence.  The Justice Secretary argues that the idea behind SARAH is to protect people who act in the interests of society.

Read More

IOSH Conference

Took place on the 17th + 18th June.

The UK’s foremost health and safety conference took place in June.

It’s goals and aims were to provide strategic global insights, influential case studies and featured 80 internationally renowned speakers and 36 hot sessions themed around ‘inspiring leadership’.  This year a lot of focus was on providing practical knowledge and advice that can be put straight into action in the workplace.

Prior to the conference, Mr Chmiel, CEO of IOSH said: “This year’s conference is about enabling insightful, future-orientated decision making in an ever-changing world of work. The demands on leaders are great so we are responding with a high-calibre speaker programme.”

It was the first time this year that the conference coincided with the Safety and Health Expo.

Mythbusting by the HSE

The HSE Myth Busters Challenge Panel provides a mechanism to independently challenge potentially disproportionate or inaccurate advice or decisions, made in the name of health and safety.

“We think that communicating these decisions will help all our clients with a better insight into the ongoing ‘perception v reality’ arguments which appear in the media from time to time”.

Phil Jones

Fabric store could not employ work experience pupil due to scissors being around

The enquirer was looking for work experience for her daughter and asked at a local fabric store. She was told they could not employ work experience students “due to health and safety as there are scissors around”. Their insurers will not cover them.

Read the Panel’s decision HERE.

Public not allowed to remove out of date planning notices in public areas

A council planning department has asked the public not to remove out of date planning notices in public areas. The public are doing this in an effort to clean up their community.

Read the Panel’s decision HERE.
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The Health & Safety Executives role in the Commonwealth Games.  Local authorities are the lead health and safety regulators for all Games-related activity during the competition events. They will support Local Authorities in adopting a proportionate approach to regulation of the Games in line with the National Local Authority Enforcement Code.They will seek primarily to influence through early intervention with duty-holders rather than proactive site inspection – this is in keeping with UK Government policy.  HSE will not conduct proactive inspections at Commonwealth venues and sites during the Games.

They will be ready to respond in the event of a work-related incident or emergency affecting the smooth running of the Games.

Find out more HERE.

Hear from our expert Philip Jones.He talks risk assessments, and the importance of them!Read his comments HERE
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