Adam Bernstein hosts a monthly look at one of the legislative aspects that most affect your business, how it is run and how it can be more profitable. This month, Fiona Paddon of law firm DLA looks at fire safety in the workplace.

It may be an obvious pun, but fire safety is a hot topic. The deputy prime minister is looking wholesale at ways to streamline how fire risks are tackled.

The changes are to be made under the Regulatory Reform (Fire Safety) Order 2004.

The draft order is with a parliamentary select committee, which is finalising the detail.

If the committee is happy, the order will be passed effectively on the nod, with no real debate in the house itself. The expectation is that the order will enter into force within the next year.

HOW WILL THE CHANGES AFFECT YOU?

Under the 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 on them.

The obligations contained in the order are very similar to those in the Management of Health & Safety at Work Regulations 1999 (which apply to general health and safety duties) and which 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.

Penalties vary, but in relation to offences dealt with in the Magistrates' Court the maximum penalty is £5,000.

In Crown Court the fine level is unlimited and some offences can 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 usually the fire authority (normally the Fire Brigade) except in the case of construction sites and certain other exceptions where the enforcing body will be the Health & Safety Executive.

As matters stand, enforcement may be split, even in respect of one set of premises, between the FA and those who enforce general health & safety legislation, which for many employers will be local environmental health officers.

Those workplaces that 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 SHOULD YOU BE DOING NOW?

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 local FA or the HSE.

Fiona Paddon is a solicitor in the Regulatory Group at DLA.