Communities and Local Government

• Fire and resilience
• Circular 28: The Fire Precautions (Workplace) Regulations 1997

Fire and resilience

Circular 28: The Fire Precautions (Workplace) Regulations 1997

Although this report was commissioned by the Office, the findings and recommendations are those of the authors and do not necessarily represent the views of the Office of the Deputy Prime Minister.

The Chief Executive to the County Council
The Clerk to the Fire and Civil Defence Authority
The Clerk to the Combined Fire Authority
The Chief Fire Officer

Dear Sir or Madam

Summary

1. The Fire Precautions (Workplace) (Amendment) Regulations 1999 (S.I.1999 No. 1877), were laid before Parliament on 7 July 1999 and come into force on 1 December 1999. They amend the Fire Precautions (Workplace) Regulations1997 (S.I. 1997 No. 1840), which came into force on 1 December 1997.The Regulations, in their amended form, apply to the majority of workplaces where people are employed, including workplaces where a fire certificate is in force or for which an application for a fire certificate is pending under the Fire Precautions Act 1971.

2. The amending Regulations ("the 1999 Fire Regulations"), which were primarily made under the European Communities Act 1972, put beyond doubt the adequacy of the implementation (in Great Britain) of the fire safety requirements of two health and safety European Council Directives, 89/391/EECand 89/654/EEC, adopted in 1989. The amendments:

• confirm the unconditional nature of employers responsibilities towards safeguarding the safety of their employees in case of fire;
• extend the scope of the Fire Precautions (Workplace) Regulations 1997 ("the1997 Fire Regulations") by applying Part II of those Regulations (the substantive fire safety requirements) to some workplaces (where people are employed)which had previously been excepted from that application; and
• modify the enforcement provisions of the 1997 Fire Regulations, replacing the hybrid system of those Regulations (which included civil sanctions in certain cases) in favour of a criminal sanctions only regime, and deleting the written notice of intent procedure in favour of the adoption of the principles set out in the Enforcement Concordat, which establishes the procedural safeguards for employers (and others) that participating enforcers, including fire authorities, will follow.

3. Fire authorities should note that there is nothing in the Directives or in the [implementing] workplace fire precautions legislation a term defined by regulation 9(2) of the 1997 Fire Regulations, as amended, and of which the Regulations form part which would justify any reduction in the levels of fire safety protection already achieved by existing legislation. On the contrary, any application of the provisions of the workplace fire precautions legislation which might jeopardise existing levels of protection would be a misapplication of the requirements of the Directives which they implement.

Contents of Circular

4. This circular:

• provides detailed consideration of the requirements imposed on employers and other persons by the Regulations in their amended form;
• covers the arrangements for enforcement of the amended Regulations, which(other than for Crown premises) generally rest with the fire authorities;
• draws attention to the non-statutory guidance, entitled "Fire Safety:An employers guide".

5. Guidance to fire authorities is provided in the following appendices:

Appendix 28/1 : Background to, and summary of the provisions of, the Fire Precautions (Workplace) Regulations 1997,as amended by the Fire Precautions (Workplace) (Amendment) Regulations1999

Appendix 28/2 : Detailed consideration of the Fire Precautions (Workplace) Regulations 1997, as amended by the Fire Precautions (Workplace) (Amendment) Regulations 1999 (with contents page at page 18 and annexes relating to principles and procedures for enforcing the Regulations and a model standard enforcement notice)

Appendix 28/3 : Guidance for employers

Appendix 28/4 : The effects of amending and re-enacting the Management of Health and Safety at Work Regulations 1992 as the Management of Health and Safety at Work Regulations1999

6. Some of the amendments described in the Circular affect employers generally : for example, it is made clear that it is they who have ultimate responsibility for the safety of their employees in case of fire, even where others have obligations to ensure that the requirements of the Regulations are complied with. However, the chief effect is to extend the scope of the 1997 Fire Regulations by imposing (from 1 December 1999) the requirements for risk-based fire precautions in the workplace directly on employers who have control of workplaces (including premises which require a fire certificate under section 1 of the Fire Precautions Act 1971 ("the1971 Act")) which were excepted (by regulation 3(5)) from the application of those Regulations.

7. The Circular describes the 1997 Fire Regulations, as amended by the 1999 Fire Regulations, as at 1 December 1999. Further amendments are being made to these Regulations as a result of amendments to, and there-enactment of, the Management of Health and Safety at Work Regulations1992 ("the 1992 Management Regulations"). The proposed Management of Health and Safety at Work Regulations 1999 ("the 1999 Management Regulations)are likely to come into force by January 2000. Accordingly, your attention is drawn to Appendix 28/4 because that Appendix sets out the changes to the 1997 Fire Regulations, as amended, to be made by the 1999 Management Regulations. Where references are made to the 1992 Management Regulations in Appendix 28/2, you should have regard to the contents of Appendix 28/4.

Approach to enforcement

8. Fire authorities will recognise that this imposition of specific requirements directly on employers, who have control of fire certificated premises and other workplaces, represents an important extension of fire precautions legislation that confirms the need to develop further an approach to the enforcement of fire safety in the working environment which differs from that traditionally followed. The requirements of the Regulations should not be administered by fire authorities in a prescriptive way such as is necessary to process an application for a fire certificate under the 1971Act. Instead, their role is to enforce the Regulations by reviewing the employers risk assessment and assessing whether the employer is complying with the requirements of the Regulations. These issues are dealt with more fully in the body of the Circular, beginning at paragraph 59 of Appendix 28/2 and including Annex A to that Appendix.

9. The enforcement regime originally set out in Part IV of the 1997Fire Regulations is substantially replaced by a regime which has the clarity, simplicity and effectiveness of the 1971 Act approach to enforcement. There is no written notice of intent procedure. It is an easily applied fire safety regime with clear and unambiguous controls. Generally, the test for whether an offence has been committed is whether the employer (or other person) has failed to comply with the provisions of the Regulations or failed to comply with any subsequent enforcement notice. A simplified regulation11 continues to make a serious breach of the Regulations a criminal offence.

Legislative overlap

10. The purpose of the 1999 Fire Regulations is to give further effect in Great Britain to the requirements of the two 1989 European Council Directives referred to in paragraph 2 above and not to repeal or amend legislation other than certain provisions of the 1997 Fire Regulations. Accordingly, the deletion of most of the exceptions from those Regulations has produced a legislative overlap of fire safety requirements e.g. the Regulations and fire certification but not a conflict of such requirements. For example, the application of the Regulations to certificatable premises does not override the requirement to apply for a fire certificate if use of the premises concerned meets the numerical and other thresholds set out in the designation Orders made in pursuance of section 1 of the 1971Act (the Fire Precautions (Hotels and Boarding Houses) Order 1972 and the Fire Precautions (Factories, Offices, Shops and Railway Premises) Order1989).

11. However, the content of the fire certificates, which are issued or amended by the fire authorities, will clearly be influenced by, and can be expected to reflect fully, the findings of the employers fire risk assessment. In practice, these findings will be central to the decision making process. Where both certification and the Regulations apply, regulation17(4) of the 1997 Fire Regulations, as amended by regulation 14 of the1999 Fire Regulations, resolves any direct conflict there may be between the terms of the certificate (both existing or proposed) and the provisions of the workplace fire precautions legislation in favour of the latter. The prescription enshrined in certification must give way to the necessary extent. (In this connection, it should be noted that fire authorities may, not shall, amend the content of fire certificates.) Regulation 15 of the 1999 Fire Regulations makes similar provision (to that of regulation17(4)) in respect of safety certificates issued under the Safety of Sports Grounds Act 1975 or the Fire Safety and Safety of Places of Sport Act 1987.(See paragraphs 23, 24, 68 to 70 and 118 et seq. Of Appendix 28/2 for further details.)

12. It was not appropriate to address this and other legislative overlap further by secondary legislation under the special provisions of the European Communities Act 1972. The Government expects new primary legislation to rationalise the position in due course and intends to introduce legislation as soon as Parliamentary time allows. Meanwhile, to reduce legislative overlap, fire authorities will wish to maximise the use of their powers, under section 5A of the 1971 Act, to grant exemption from the requirement for a fire certificate in respect of premises which meet the qualifying criteria set out in the 1989 Order referred to in paragraph 10 above.

13. Fire authorities may also wish to inform certificate holders and those applying for a fire certificate about the changes which take place with effect from 1 December 1999, using the information set out in Annex A to this letter.

Further guidance

14. This Circular sets out the principles and procedures which fire authorities will wish to follow to maximise the consistency of their application and enforcement of the Regulations nationally. However, it is acknowledged that more needs to be done, especially with regard to guidance on the frequency and content of inspection of workplaces (see paragraph 59 of Appendix28/2) and issues relating to legislative overlap, many of which will not surface clearly until experienced in practice. Accordingly, the operation of the Regulations will be monitored with a view to examining the problems which emerge and providing more detailed guidance to fire authorities on the most frequently asked questions. It is expected that progress would be reported to the proposed Fire Safety Advisory Board, for their views on how the work should be taken forward and how it might be linked into other fire safety initiatives.

Legal status of the Circular

15. We hope that this non-statutory guidance will help to secure uniformity of application of the Regulations. However, only the courts can give a binding interpretation on a point of law. You should bear this in mind when using this guidance and make it clear when giving advice on the application of the Regulations.

Internet information

16. The 1997 and 1999 Fire Regulations can be found on the Fire Policy Unit (FPU) page at the ODPM web site.

17. This Circular can also be found on the FPU page. It replaces Fire Precautions Act 1971 Circular No. 27 which is hereby cancelled.

18. The Enforcement Concordat can be found on the Better Regulation Unit (BRU) page at the Cabinet Office site on the Internet. Its address is http://www.cabinet-office.gov.uk/bru/1998/enforce.htm.

Resource implications

19. There should be few costs for fire authorities arising from the introduction of the 1999 Fire Regulations and publication of the guidance, "FIRE SAFETY An employers guide". The Regulatory Impact Assessment(RIA), which was laid with the Regulations before Parliament and relates only to those costs directly attributable to the introduction of the Regulations, identified costs which were expected to be restricted to the purchase of copies of the Regulations and the guide. The extension to the scope of the 1997 Fire Regulations and the changes to the enforcement regime were not expected to give rise to other significant costs. Copies of the RIA are available from the Fire Policy Unit on request.

Yours faithfully

Eddie Guy
Head of Fire Policy Unit

Issued to: County Councils, Fire and Civil Defence Authorities and Combined Fire Authorities in England and Wales.

Copy sent for information to: The Local Government Association and the Welsh Local Government Association.

Telephone contact numbers:

Mark Coram: 020 7217 8279 (General enquiries and legislation)
Richard Mullins: 020 7217 8738 (Legislation)
Bruce Tucker: 020 7217 8026 (Copies of the RIA)
HMI Geoff Bowles: 020 7217 8037 (Technical guidance)

Annex A

The Fire Precautions (Workplace) Regulations 1997, as amended: Information for Certificate Holders and Those Appplying for a Fire Certificate

Paragraph 13 of the covering letter refers. Where necessary, fire authorities may wish to inform certificate holders and those applying for a fire certificate of the following.

Recent changes to the fire precautions legislation

1. The Fire Precautions (Workplace) Regulations 1997 ("the 1997 Fire Regulations"), which applied to most but not all workplaces where people are employed, came into force on 1 December 1997. They implemented some general fire safety requirements of the European Council Framework and Workplace Directives, which were adopted in 1989. The Directives and therefore the Regulations placed the primary responsibility for ensuring health and safety in the workplace, including safety from fire, on employers.

2. The 1997 Fire Regulations excepted certain premises, including many with fire certificates in force or for which an application for a fire certificate was pending under the Fire Precautions Act 1971, from their scope, as it was considered that existing domestic legislation already made comparable provision.

3. However, these exceptions have recently been removed by the Fire Precautions (Workplace) (Amendment) Regulations 1999, which came into force on 1 December 1999. Their removal was in response to the European Commissions concern that the text of our existing legislation, which applies to the workplaces excepted from the 1997 Fire Regulations, did not implement the requirements of the Directives in full by applying those requirements directly upon all employers. (The Fire Precautions Act, for example, places the responsibility on occupiers/owners rather than on the employer.)

4. The Commission were also concerned that the duties placed on employers by the 1997 Fire Regulations should fully reflect the unconditional nature of the responsibilities and obligations imposed on employers bythe Framework Directive. That is to say, employers have ultimate responsibility for the safety of their employees in case of fire, even where others have obligations to ensure that the requirements of the Regulations or other legislation are complied with. This responsibility extends to employers whose premises had been excepted from the 1997 Fire Regulations hence the need to apply the Regulations explicitly and in full to those employers by removing the exceptions.

The main effect of these changes

5. The main effect of these changes is that, from 1 December 1999, if you employ people on the premises, they will be subject to the certification requirements of the Fire Precautions Act 1971 and the Fire Precautions(Workplace) Regulations 1997, as amended.

6. This means that if you are an employer you must ensure that the requirements of Part II of the Regulations (relating to means of escape etc.) are complied with in respect of every workplace consisting (or forming part) of premises requiring a fire certificate, which is to any extent under your control(and every non-certificated workplace too).

7. In order to identify the measures you need to take to comply with the fire safety requirements of Part II you must make a suitable and sufficient risk assessment, if you have not already done so (under regulation3(1) of the Management of Health and Safety at Work Regulations [1992,as amended] [soon, 1999]). An existing fire certificate will assist you considerably and, in most cases, little more may be required other than to keep the risk assessment under review.

8. In addition, under regulation 3(4) of the above Management Regulations, where you employ 5 or more people (whether or not they are at work in the same workplace at any one time or at separate workplaces), you must make a record of the significant findings of the risk assessment (or revised assessment) and any group of your employees identified by it as being especially at risk at each workplace. (The requirement for a record depends on the number of people employed by the employer and not where they work.)The record should be available for inspection by the fire authority when necessary (under section 19 of the Fire Precautions Act 1971 as applied by regulation 17 of the 1997 Fire Regulations, as amended) for the purpose of assessing the level of compliance with the Fire Regulations. Current fire certificates are not a substitute for risk assessment, but they may be accepted as part of the risk assessment record, supplemented as required, e.g. by appending the risk assessment findings, to reduce duplication of work.

9. Every person other than an employer (e.g. a landlord), who has, to any extent, control of a workplace consisting (or forming part)of premises requiring a fire certificate, must ensure that, so far as relates to matters within his/her control (e.g. the common parts),the workplace complies with any applicable requirement of Part II of the Regulations.

Information about the Regulations and related guidance

10. The 1997 and 1999 Fire Regulations (S.I. 1997 No. 1840 and S.I.1999 No. 1877) can be found on the Fire Policy Unit (FPU) page at the ODPM web site.

The Regulations may also be purchased from The Stationery Office (telephone orders 0870 600 5522), priced at £3.20 and £2.50 respectively, quoting ISBN 0-11-064738-6 and ISBN 0-11-082882-8.

11. Non-statutory guidance, entitled FIRE SAFETY An employers guide, was published on 22 July 1999 to help employers to meet their fire safety responsibilities in the workplace. The guide offers user-friendly advice that seeks to satisfy the needs of all who are caught by the 1997 Fire Regulations, as amended, irrespective of the size of their undertakings.

12. Although the guide is primarily directed towards employers, it should nevertheless be of assistance to local managers, supervisors, employees representatives and others who need to know about fire precautions in the workplace.

13. It should be noted that following the guidance is not compulsory. You are free to take other action in order to comply with the Fire Regulations. However, if you do follow the guidance you will normally be doing enough to comply with the law.

14. Copies of the guidance priced at £9.95; ISBN 0-11-341229-0 may be purchased from The Stationery Office (telephone orders 0870 6005522) and HSE Books (telephone 01787 881165). They may also be obtained through The Stationery Offices accredited agents or any good bookseller.

Further advice

15. You may wish to seek advice as to whether your risk assessment and its outcome (in terms of the fire precautions in place or to be installed)are adequate. If so, we [named fire safety officers from the fire authority]will be pleased to assist you. We will be familiar with the contents of the above guide for employers and will take them into account when responding to requests for advice and in any discussions with you and others about compliance with the Fire Regulations.