The Safety, Health and Welfare at Work Act, 2005 (the "2005 Act"), together with the Safety, Health and Welfare at Work (General Application) Regulations, 2007 (the "2007 Regulations") and the Fire Services Act, 1981 (the "1981 Act") place on employers a number of obligations in respect of fire safety in the workplace.
The 1981 Act set out the Statutory Framework for the establishment of fire authorities and the organisation of fire services and for fire safety, firefighting, the protection and rescue of persons and property and related matters. It places a general duty on every person having control over a premises to take reasonable measures to guard against the outbreak of fire on the premises, provide reasonable fire safety measures for such premises and prepare and provide appropriate fire safety procedures for ensuring the safety of persons on such premises, ensure that the fire safety measures and procedures are applied at all times, and ensure as far as is reasonably practicable the safety of persons on the premises in the event of an outbreak of fire (section 18, as amended).
It sets out, at section 19, what constitutes a Potentially Dangerous Building. This is any building which would, in the event of fire, be life endangering due to a number of specified conditions. This becomes relevant also for the purposes of enforcement, which will be considered below.
The 2005 Act is a framework piece of legislation, which imposes positive obligations on employers and employees. It obliges employers to plan how to manage fire.
All employers must plan ahead for emergencies or serious and imminent danger (section 11(1)). They must also prepare, and revise as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger (section 8(2)(j)). In doing so, they must engage a person with expertise in the area to assist with preparing these plans and procedures if they cannot adequately do so themselves (section 8(2)(l)).
All employers should consider fire safety when conducting their risk assessment which should include fire prevention, fire detection and warning, and emergency escape and fire-fighting (section 19).
Consideration must also be given to the safety of persons other than employees within the workplace: for example, contractors, visitors and members of the public (section 12).
These obligations are supplemented by Articles 12 and 13 of the 2007 Regulations which give practical guidance to employers in relation to emergency exits and firefighting. Between these two Articles, a useful checklist of dos and don'ts can be found.
Employers have, under the 2005 Act, different obligations depending on whether there is an "emergency or serious and imminent danger" or "serious, imminent and unavoidable danger". The obligations under each scenario are different, and yet both descriptions are (unhelpfully) very similar.
Section 8(2)(k) provides that all employers must report accidents and dangerous occurrences to the Health and Safety Authority, where the Act requires them to do so. All employers must notify the Health and Safety Authority if an employee is injured at work and cannot perform their normal work for more than three consecutive days (not including the day of the accident). Dangerous occurrences include explosions involving electrical short circuit discharge, fires involving any substance and the unintentional ignition or explosion of explosives.
Both the 1981 Act (section 22) and the 2005 Act (section 64) provide powers of inspection to Fire Authorities and the Health and Safety Authority.
Under the 1981 Act, the Fire Authority can enter any land or building (except a dwelling occupied as a single dwelling) for the purposes of ensuring that the statutory obligations under the Act are being complied with. This can be done at "all reasonable times". The Fire Authority does not need to give notice or seek the consent of the owner or occupier. It may bring any other person and/or equipment as it requires onto the premises to assist with the inspection.
The 2005 Act is more limited. The Health and Safety Authority can, at any time, enter any place that its inspector believes to be a place of work for the purposes of enquiring into, searching, examining and inspecting to ascertain if safety and health legislation is being complied with. But, the consent of the occupier is required, or a warrant from the District Court. The inspector can be accompanied by a Safety Representative appointed by the employees of that place of work.
Two types of Notices may be served under the 1981 Act:
- Fire Safety Notice (section 20)
- Closure Notice (section 20A)
A Fire Safety Notice may be served by a fire authority on the owner or occupier of a Potentially Dangerous Building under section 20. This may prohibit the use of the building, or any part of it, unless certain specified precautions are taken. It may also impose specific requirements on the owner or occupier.
A Closure Notice may be served on the person in control of the building under section 20A if an authorised person is of the opinion that a building poses or is likely to pose a serious and immediate risk to the safety of persons in or on the premises, including a risk of fire. The notice comes into effect as soon as it is received. It can be appealed to the District Court. However, it will remain operative even if it is appealed, unless the District Court orders otherwise.
If the prohibited activity continues despite the Closure Notice, an authorised person may apply to the High Court for an Order to terminate the continued activity (section 20A(7)).
Under section 4 of the 1981 Act, contravention by any person (by act or omission) of any requirement under the Act or regulations made under the Act, or a failure to comply with a Fire Safety Notice or Closure Notice, as served, is an offence.
Under section 77 of the 2005 Act, failure by an employer to discharge its obligations under Section 11(1)-(4) is an offence. Under section 80, where an offence is committed by a company, if it can be shown that the offence was authorised, consented to, or attributable to the connivance or neglect of a director, manager or other similar officer, or any person who purports to act in any such capacity, that person can be prosecuted in a personal capacity as if they had committed the offence.
If one is convicted of a summary offence under the 1981 Act a fine of up to €3,000 and/or imprisonment for up to 6 months may be imposed. On conviction on indictment, a fine not exceeding €130,000 and/or imprisonment for up to two years may be imposed.
The penalties under the 2005 Act are harsher than those under the 1981 Act, with a fine of up to €5,000 and/ or imprisonment for up to 12 months on summary conviction, and a fine not exceeding €3,000,000 and/or imprisonment for up to two years on conviction on indictment.
A number of lessons have recently been learned as a result of the prosecution and inquest arising out of the deaths of two fire-fighters in Bray, County Wicklow in 2007. A failure to provide training on new equipment was considered to be the most serious of the charges to which a plea was entered by Wicklow County Council, resulting in a fine of €355,000 and costs of c. €98,000.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.