Why should charitable organisations be concerned about fire safety?
If you own, manage or operate a charity (offices and retail shops included) or the common parts of any residential building, you must comply with current UK fire safety legislation as well as health and safety legislation.
Under the Regulatory Reform (Fire Safety) Order 2005, all 'dutyholders' are required to ensure the safety of people in respect of harm caused in the event of a fire, but the definition of a 'dutyholder' can be quite wide.
Where do the risks lie?
- It is important for charities to be aware that there has been an increase in the amount of fire safety prosecutions that have been undertaken in the UK in the last few years, with a particular focus on charitable and publicly funded organisations – who were often seen as escaping the wrath of the law when corporate wrongdoing was identified.
- Courts take breaches of fire safety extremely seriously even in cases where no fire has occurred and no actual harm was caused – it is more about the potential for a safety breach to put persons at risk of death or serious injury in the event of fire.
- The penalties imposed for both charities and individual trustees or senior representatives of the charity have increased substantially in the last few years.
- The fines are still relatively high, albeit reduced if the charity can prove that a large fine would substantially affect the charity's ability to provide its services.
Who are the fire safety 'dutyholders'?
In summary, fire safety 'dutyholders' (otherwise known as a 'Responsible Person') are the people responsible for providing adequate fire safety precautions to ensure the safety of any relevant person that uses or visits the premises or is simply affected by the work activities undertaken at the premises. Responsible Persons will therefore include:
- building owners
- persons who have control of the premises where the work activities take place – to the extent of their obligation e.g. landlords and/or managing agents
- contractors and tenants (in relation to maintenance, repair or the safety of the premises)
If the charity operates from, occupies or has control of a building, the charity is likely to have responsibility for fire safety. The level of responsibility will be in proportion to the charity's level of control over the premises.
Any suspected breach of fire safety could result in further investigation by an enforcing authority and a potential prosecution of the charity, the details of which are likely to be made public and could affect the charity's reputation.
Do trustees have any personal responsibility to manage fire safety?
As with health and safety obligations, there are organisational duties to be met by the charity, but there are also duties to be met by individuals within the charity as well. Ultimate responsibility for fire safety management usually rests with the Responsible Person, which is normally an identifiable charitable organisation (insofar as the charity is incorporated), with a nominated 'competent' person delegated to assist the charity in complying with its duties.
The Responsible Person has a legal responsibility to oversee fire safety for the charity, but some of these duties can be delegated to an individual fire warden. Fire wardens assist the Responsible Person in emergency procedure planning and fire prevention and are usually also in charge of helping people evacuate during a fire drill.
The trustees have a part to play too. If it can be proved that the charity committed a breach of fire safety legislation with the consent, the connivance, or attributable to neglect on the part of a trustee, the trustee as well as the charity would be guilty of a criminal offence.
In addition, many health and safety / fire safety policies specifically refer to the trustees or the Board of Trustees having ultimate responsibility for the health, safety and security of all employees, visitors and contractors. Whilst charity trustees are of course in law the people with ultimate authority and responsibility for directing and governing the charity, this wording can hold the trustees 'hostage to fortune' as being seen as Responsible Persons, where in fact in an incorporated charity it is likely to be the charity itself as a corporate body that is the Responsible Person.
The penalties imposed for both charities and individual trustees or senior representatives of the charity have increased substantially in the last few years. The introduction of strict sentencing guidelines for health and safety offences in 2016 may have paved the way for the increase (million pound fines and imprisonment are now commonplace), but these guidelines do not strictly apply to fire safety offences, even though prosecutors are often urging judges to sentence in the 'spirit' of the health and safety guidelines. Also, charitable organisations are likely to have their penalty reduced if they can prove that a large fine would substantially affect their ability to provide their services.
- St David's Hospice (2017): A fire safety consultant who gave "valueless" risk assessments to a registered charity was given a six month prison sentence, suspended for two years and 180 hours of community service. The consultant provided fire risk assessments (that he said were in 'draft') that failed to address obvious safety risks.
People were put at serious risk of death because of poor escape routes, a lack of fire alarms and insufficient precautions to reduce fire and the spread of fire. At one charity shop, there was insufficient emergency lighting, doors with inadequate fire prevention mechanisms and no mention of a neighbouring business which relied on a connecting door as its means of escape.
The judge in this case commented that the fact that someone could set themselves up to provide advice about fire prevention with no formal qualifications was "jaw-dropping". The Fire and Rescue Service said it hoped the conviction would help bring in new rules to regulate the charity sector.
- St Michael's Hospice (2018): St Michael's Hospice, a registered charity, pleaded guilty to two offences of failing to take general fire precautions in respect of its residents. Three residents were killed after suffering smoke inhalation following a fire caused by arson.
According to the prosecution, it was clear that staff and the managers had no appropriate training for the evacuation of residents, holes in the ceilings allowed smoke to spread and locked exit doors (including the main exit) could not be readily opened. In its defence, the hospice said it was unaware of the defects "ruthlessly exposed" by the fire, and it accepted "blameworthiness for failing to make the premises as safe as it should have been".
The judge imposed a fine of £250,000 for the charity's "woefully inadequate" safety measures, plus £165,000 in costs. The fine was reduced by 30% due to St Michael's charitable status. The hospice said the fine would be paid from reserves and costs from elsewhere.
What can charities do to limit their exposure to the risk of investigation or prosecution?
- Seek specialist health and safety / fire safety legal advice – this will often focus on providing both contentious advice in response to an incident, as well as preventative advice to ensure compliance with current safety legislation.
- Review the charity's current incident response protocol - the charity and its trustees will need support during the immediate aftermath of an incident and throughout the post incident / investigation and prosecution process.
- There are tools available for charity clients to help with their preventative approach to health and safety and/or fire safety management:
- due diligence desktop reviews of the charity's policies and practices
- health & safety / fire safety health check – specialist consultants can provide practical advice to test (as part of a practical scenario) how the charity would deal with issues during the first few hours after an incident occurs and to see how the charity's systems and documents would stand up to scrutiny
- mock trial / mock interviews under caution – this is a useful tool to show trustees and senior representatives of the charity what can happen during an investigation or prosecution following a fire incident and how to learn lessons from such an event
Trustees and senior managers of charities must make sure they do all that is reasonable in the circumstances to comply with current fire safety legislation in order to protect themselves and the charity from criminal liability and potential prosecution. Seeking to achieve compliance by using one or more of the above tools to promote internal safety awareness within the charity will limit the charity's exposure to investigation by an enforcing authority in the event of an incident, or at the very least, can be relied upon as strong mitigation in the event of a prosecution.
 R v St Michael's Hospice  EWCA Crim 161,