Is the Responsible Person an actual person? — and five more important fire safety questions answered

With the current focus very much on “building safety” under the new Building Safety Act regime, specialist fire safety Principal Associate, James Muller, reminds businesses not to forget their duties for managing fire safety risks in all non-domestic premises under the Regulatory Reform (Fire Safety) Order 2005 (“RRO”).

James looks at some of the most common questions on this important topic.

1. Is the Responsible Person an actual person?

For most businesses the answer will be no.

For any workplace, this will usually be a limited company, although in smaller businesses it is possible that it might be an individual or a partnership.

The Responsible Person is the person primarily responsible for compliance with the RRO.

There is also the separate concept under the RRO of a “competent person” — these are one or more individuals within an organisation who are competent to assist the Responsible Person in complying with its obligations for fire safety. What is important here is that the Responsible Person remains responsible for compliance — it does not pass that responsibility to those individuals. The Responsible Person remains the person primarily liable to prosecution for any breach of those requirements.

2. Can I contract out my fire safety duties to a specialist consultant?

In a word: no.

Duties under the RRO are non-delegable. This means that the duties themselves cannot be delegated or passed to anybody else. The actions required in order to comply with such duties can, of course, be carried out by a third party — and they are often are. However, the Responsible Person remains responsible for ensuring that that third party carries out those tasks, and remains liable to sanction if those duties are not fulfilled.

Responsible Persons seeking to contract out aspects of their fire safety compliance will therefore need to take significant steps to:

• assess the competence and capabilities of their contractors with respect to fire safety
• clearly define the scope of the service with respect to fire safety (what are they doing, and, crucially, what are they not?)
• provide the contractor with all relevant information
• monitor and review the work of the contractor

3. I’m not a Responsible Person, so does this mean that I have no legal duties for fire safety?

Legal duties under the RRO extend beyond the Responsible Person. Under Article 5(3) RRO, duties can extend to any person/company who has, to any extent, control of premises, with the duties themselves being imposed so far as the requirements relate to matters within that person’s or company’s control.

There is no binding legal authority on quite what constitutes control in these circumstances, and therefore who is caught by Article 5(3) remains unclear. At the time the RRO was being presented to parliament, the examples given were that it would apply to contractors who take responsibility for installation and maintenance of fire precautions or preventative measures, (e.g. contractors responsible for maintaining the fire alarm system). Over the years there have been attempts by prosecuting fire authorities to extend this to cover a wider set of people/companies, e.g. consultant fire risk assessors, but whether this is in fact correct remains to be determined.

Directors, company secretaries, officers and senior managers of companies, where those companies are a Responsible Person, should also be aware that they can be held criminally accountable for breaches of the company if they consent or connive in those breaches, or if those breaches are attributable to their neglect.

4. My businesses occupies one storey of a multistorey office building with common lifts/stairs — who is the Responsible Person for fire safety?

For any workplace, the Responsible Person is the employer if the workplace is to any extent under their control. So, for the office on that floor the Responsible Person will be the occupying business.

However, the common stairs/lifts, as well as the external structure of the building, are likely to fall to the building operator.

As the fire safety of the two areas will be intertwined, both are under a positive duty to cooperate and coordinator fire safety matters with each other.

5. Can I be prosecuted for fire safety breaches even if there is no fire?

Yes. There is no need for a fire to take place for a prosecution to be brought for a breach of fire safety obligations under the RRO. Prosecutions are criminal in nature — they are brought before the magistrates’ court or Crown Court and those who are guilty receive a criminal record and criminal sentence.

The maximum sentence for any limited company prosecuted under the RRO is an unlimited fine. For many organisations, the reputational damage/negative publicity that comes with such a prosecution will also be as damaging, if not more damaging, than the fine itself.

The maximum sentence for any individual — whether that be a director/manager of a company that is also prosecuted, or an individual operating a business as a sole trader or partner — is up to two years’ imprisonment (in addition to an unlimited fine). Individuals will receive a criminal record.

6. The fire service has served an ‘Enforcement Notice’ on our business. They say we have to take certain changes, in a certain timeframe. Is there anything we can do to contest this?

Fire authorities have a range of enforcement options available to them to promote or compel compliance with fire safety by Responsible Persons.

One such option is an ‘Enforcement Notice’. These will cite specific deficiencies and specify changes that need to be made within a certain timeframe. Failure to comply with the Enforcement Notice is a criminal offence in itself.

Businesses receiving an Enforcement Notice who feel that they are not in breach of the relevant fire safety legislation can bring an appeal against the notice within 21 days of it being served. This is a strict statutory time limit. Appeals are heard before the magistrates’ court.

If the Enforcement Notice is not appealed within 21 days, then the business will have to ensure that they comply with the Notice within the specified timeframe. If the business is subsequently prosecuted for breaching the Enforcement Notice it will be very difficult for it to argue at that stage that the Notice should not have been issued, or the fire service made an error. It is therefore imperative that the correct advice is sought as a matter of urgency so that any appeal can be launched within the strict 21 day time limit.