Communities and Local Government

1. The Fire Precautions (Workplace) Regulations 1997 came into forceon 1 December 1997. There were no transitional provisions, so they tookimmediate effect on every employer (or other person so far as relates tomatters within his control) with respect to every workplace in Great Britain(England, Scotland and Wales), unless the workplace was excepted by regulation3(5).

2. The Fire Precautions (Workplace) (Amendment) Regulations 1999, whichamend the Fire Precautions (Workplace) Regulations 1997, come intoforce on 1 December 1999 (see regulations 1(1); 2; and 3 to 16which set out the amendments to the 1997 Fire Regulations). The

1999 Fire Regulations also contain no transitional provisions deferringthe commencement date. They will therefore take immediate effect on everyemployer (or other person so far as relates to matters within his control)with respect to every workplace in Great Britain (England, Wales and Scotland),unless the workplace retains an exception under regulation3(5) of the 1997 Fire Regulations, as amended by regulation 5(c)of the 1999 Fire Regulations. (See paragraph 22 below for detailsof the excepted workplaces which remain.)

3. The Fire Regulations do not apply to Northern Ireland where separate,but very similar provision (the Fire Precautions (Workplace) Regulations(Northern Ireland) 2000) is being made under the European Communities Act1972 and the Fire Services (Northern Ireland) Order 1984. Nor do the Regulationsapply to offshore workplaces.

4. This regulation contains definitions of the terms used in the FireRegulations. Some of the terms need amplification for ease of understanding.

5. For the purposes of the Fire Regulations, by virtue of section 53(1)of the Health and Safety at Work etc. Act 1974 ("the 1974 Act"), "employee"means a person who works under a contract of employment or apprenticeship(whether express or implied and, if express, whether oral or in writing).The term also includes those who are treated as an employee because:-

(a) by virtue of regulation 4 of the Health and Safety (Training forEmployment) Regulations 1990 (S.I. 1990/1380), they are trainees who areprovided with "relevant training" within the meaning of regulation 2 ofthose Regulations (work experience or training for employment providedother than on a course run by an educational establishment);

(b) by virtue of section 48(3) of the 1974 Act, they are persons inthe service of the Crown and are therefore treated as employees of theCrown for the purposes of the 1974 Act and the regulations made under thatAct, including the Management of Health and Safety at Work Regulations1992 ("the 1992 Management Regulations"); and

(c) under section 51A(1) of the 1974 Act, inserted by the Police (Healthand Safety) Act 1997 ("the 1997 Act"), they are persons who, otherwisethan under a contract of employment, hold an office of constable or anappointment as police cadet and are therefore treated as employees of the"relevant officer", as defined in section 51A(2). The definition of "employee"in section 53(1) of the 1974 Act has been amended accordingly, by section6(1) of the 1997 Act, with effect from 1 July 1998.

6. The meaning given to the term "domestic premises" under theFire Regulations is that given to it by section 53(1) of the 1974 Act essentially premises occupied as a [single] private dwelling. Such areexcepted from the term "workplace", so that the Fire Regulationsdo not cover those employees who are homeworkers or who work asa domestic servant in a private dwelling. Nor do they cover employees whoare district nurses, telephone engineers, gas fitters, etc. when they areworking in excepted premises. Also, the Fire Regulations do notcover voluntary workers (i.e. those without a contract of employment orapprenticeship as defined in paragraph 5 above). They do, however,apply to any part of residential premises, including hotels, nursinghomes, houses in multiple occupation and like premises, which are usedin common by the occupants of more than one private dwelling, where caretakersand similar persons, being employees, work, as well as to any partof premises where so-called "domestic" staff are employed, such as thekitchens of hostels or sheltered accommodation. That is to say, any partof residential premises, other than premises occupied as a private dwelling,in which employees work is a workplace.

7. An "employer" is either the other party to the contract ofemployment or apprenticeship referred to above in connection with the term"employee", or a person who provides "relevant training" or work in connectionwith the service of the Crown or is a "relevant officer".

8. The definition of "premises" goes far wider than that setout in section 43(1) of the 1971 Act ("building or part of a building")to mean any place, including an outdoor place.

9. The definition of "workplace" relates to the use of premises"for the purposes of an employers undertaking and which are madeavailable to an employee of the employer as a place of work". Theterm does not relate to premises made available to any person(e.g. a self-employed person) as a place of work. However, it does includepremises or parts of premises where facilities, such as a basement boilerin premises in multiple occupation or a canteen, are provided for use inconnection with the place of work.

10. There is a printing error in the definition of "workplace" inthe 1997 Fire Regulations as originally published. In sub-paragraph (b)(ii)of the definition, the words "other than a public road; and" should notform part of the sub-paragraph, but be a separate and final line, thusexcepting public roads from the whole of paragraph (b) and, therefore,from the definition generally. A corrigendum slip was issued with the 1997Fire Regulations and the definition stands in law as intended, not as printed.

11. Regulation 4 of the 1999 Fire Regulations adds the term "mine"(which has the same meaning as in the Mines and Quarries Act 1954) to regulation2(1).

12. Part II of the Fire Regulations sets out the main general fire precautionsrequirements with respect to fire-fighting and fire detection (regulation4), emergency routes and exits (regulation 5), and their maintenance (regulation6). It also contains regulation 3 (application of Part II) and it is thisregulation which regulation 5 of the 1999 Fire Regulations amendsin the two ways described by paragraphs 16 and 21 below.

13. In summary, this regulation (as amended by regulation5 of the 1999 Fire Regulations) requires compliance with the requirementsof Part II of the Fire Regulations by imposing these requirements on:-

(a) every employer, in respect of every [part of every] workplace, otherthan an excepted workplace, which is to any extent under his control; and

(b) every person (other than employers referred to in sub-paragraph(a) above) who has control of a workplace, other than an excepted workplace,to the extent of his control.

The excepted workplaces are listed in paragraph (5) of this regulation,as amended by regulation 5 of the 1999 Fire Regulations. They compriseworkplaces which are specifically excluded by the Workplace Directive orfor which other European Council Directive-based fire safety requirementsexist or are to be implemented.

14. The requirements of this Part referred to in line 1 of paragraphs(1) and (6) of this regulation, relate as indicated in paragraph (8)and elsewhere to safeguarding the safety of employees in case of fire.This is fundamental to an understanding of the Fire Regulationsand is dealt with more fully under regulation 4.

15. The issue of responsible person is addressed by paragraphs(1) and (2) of regulation 3, as amended by regulation 5 of the 1999Fire Regulations. The concept of an employer (and no one else)having unconditional responsibility for thesafety of employees who work in a workplace, and the workplaceitself, is used in, and is central to, the Framework Directiveand this is carried over into the Fire Regulations. This concept is alsofundamental; and it is considered important to emphasise it here,although it is recognised that the employer will not have full controlof the workplace in every case. For example, the common parts of premises(e.g. stairways which are vital to evacuation of the workplace in caseof fire) form part of the definition of "workplace", but responsibilityfor fire safety in respect of them may fall outside the employers control.In such a case where the workplace forms part of the premises and theemployer is not the owner of the premises then, to the extent to whichin the circumstances control of the premises (or part thereof) rests witha person or persons other than the employer (including the owner, landlordor managing agent) it falls to that person to ensure that the workplacecomplies with any applicable requirement of Part II. (Regulation4(2) does not apply to owners etc. who are not employers.)

16. However, these obligations on persons other than the employer donot affect the principle of the responsibility of the employer.Paragraphs (a) and (b) of regulation 5 of the 1999 Fire Regulationsclarify the position by amending paragraphs (1) and (2) of regulation 3of the 1997 Fire Regulations respectively, in order to place an unconditionalresponsibility on employers to comply with the requirements of Part IIalongside the responsibility on any other person to the extent that thatother person has control over the workplace. Regulation 3, as amendedby regulation 5, now requires :-

(a) every employer to ensure that [all] the requirements of Part IIare complied with in respect of every workplace, other than an exceptedworkplace, which is to any extent under his control; and

(b) every other person (not being an employer referred toin sub-paragraph (a) above) who has, to any extent, control of a workplace,other than an excepted workplace e.g. an owner who has responsibilityfor the fire precautions in the common parts of a building in multipleoccupation to ensure that, so far as relates to matters within hiscontrol, the workplace complies with all relevant requirements of PartII. Thus, fire authorities (and those authorities with responsibility forenforcement in respect of ships and special premises as a result of regulation7 of the 1999 Fire Regulations) are able to take enforcement actionagainst non- employers under the relevant legislation, according to theextent of their responsibility.

17. The responsibility on employers is unconditional in that they mustensure that the requirements of Part II of the Regulations are compliedwith, to safeguard the safety of their employees, notwithstandingthe acts or omissions of others upon whom requirements are also imposedin respect of the workplace . Where some other person hascontrol of a workplace to any extent (e.g. by virtue of any contract ortenancy in relation to the maintenance, repair or safety of any workplace),then that person also has a duty to ensure that the requirements of theRegulations are complied with, but only so far as relates to matterswithin his control.

18. Prima facie, this may seem an unreasonable burden on employers regardingmatters which are not within their control. However, in practice, the problemshould not arise. In cases where both the employer and the owner of thepremises are under an obligation to secure compliance with the Regulations,the fire authority can be expected to exercise their discretion in decidingwhat enforcement action to take. If the employer has no control over thearea in question it would be more appropriate to address enforcement measuresto the person (i.e. the non-employer) who does have control (legal responsibility),and fire authorities will wish to act accordingly. For example, where anowners acts or omissions jeopardise the safety of employees (e.g. as aresult of some obstruction to the means of escape), the employer or employersin the case of multi-occupied premises will need to call upon the ownerto do what is necessary to unblock the fire exits in line with his obligations.If required, the fire authority will take steps to ensure that this happens.

19. Nevertheless, it is clear that the obligation imposed by regulation3(1), as amended, includes an obligation to take such action as is possibleto ensure that the other person (e.g. the owner) does what is necessary.The employer might thus be under an obligation to enforce the terms ofhis lease under which he occupies his premises. The theoretical burdenimposed on the employer in such circumstances is unlikely to have undueadverse consequences for him. This becomes apparent if one looks at theenforcement provisions. He will not commit an offence under regulation11, as amended by regulation 9 of the 1999 Fire Regulations,unless it is his failure to comply which places employees at risk of deathor serious injury in case of fire. A failure to do something outside hiscontrol is hardly likely to satisfy this criterion. Although an enforcementnotice could be served on him under regulation 13, he will have a defencein any proceedings in respect of his failure to comply with the noticeif he can prove that he took all reasonable precautions and exercised alldue diligence to avoid contravening the notice. Thus, one would not expectan employer to be penalised in respect of actions or omissions which hehas no power to control, if he has done his best to ensure that the personwho is in control has complied.

20. Paragraphs (2) (as amended by regulation 5(b) of the 1999Fire Regulations), (3) and (4) of regulation 3 broadly follow theterms of section 4 of the 1974 Act (general duties of persons concernedwith premises to persons other than their employees) except, of course,that their focus is on the safety of employees in case of fire. For thatsection and for paragraph (4) of this regulation, an owner may be regarded,so far as relates to any premises or matters retained within hiscontrol, as having control of a workplace (or part thereof) to that extent,by virtue of the carrying on by him of the business of letting or leasingthe premises.

21. The responsibilities for compliance referred to above extend toemployers whose workplaces were excepted from the 1997 Fire Regulationsand, where appropriate, to other persons at such premises. Accordingly,paragraph (c) of regulation 5 of the 1999 Fire Regulations amendsparagraph (5) of regulation 3 of the 1997 Fire Regulations wherenecessary, in order to place the duty to comply with the requirements ofPart II explicitly and in full on these employers and other persons.The following workplaces are no longer excepted from the applicationof Part II :-

• workplaces (described in regulation 3(5)(a) of the 1997 Fire Regulations)where a fire certificate is in force or for which an application for afire certificate is pending under the Fire Precautions Act 1971 ("the 1971Act");
• sports grounds and regulated stands (described in regulation 3(5)(b)) wherea safety certificate is in force and they are in use for the activity oractivities specified in the certificate;
• sub-surface railway stations (described in regulation 3(5)(c));
• ships in the course of construction or repair (to which regulation 3(5)(e)referred) (but see paragraph 22 below and paragraph 77 regardingenforcement);
• workplaces (described in regulation 3(5)(f)) which are subject to the FireCertificates (Special Premises) Regulations 1976 (but see paragraph 77below regarding enforcement); and
• buildings at the surface of mines (to which regulation 3(5)(g) referred)(but see paragraph 22 below).

22. The workplaces listed in regulation 3(5) of the 1997 Fire Regulations,as amended by regulation 5(c) of the 1999 Fire Regulations, whichremain excepted from the application of Part II of the FireRegulations are :-

• workplaces at construction sites (regulation 3(5)(d)). This exception remainsbecause the Construction (Health, Safety and Welfare) Regulations 1996will be amended by the Management of Health and Safety at Work Regulations1999, where necessary, to give full effect to the same requirements;
• ships other than those in the course of construction or repair,unless such repair work is carried out on the ship solely by the masterand crew of that ship (regulation 3(5)(e), as amended by regulation5(c)(ii)). Defining "ship" in accordance with section 313(1) of theMerchant Shipping Act 1995 also narrows the scope of this exception. Theexception, in its amended form, remains because fire protection and fire-fightingon ships are covered by legislation based largely on international conventions,in particular SOLAS (the Safety of Life at Sea Convention) and STWC (theStandards of Training, Certification and Watchkeeping Convention), andrelevant Regulations;
• mine facilities underground (but not buildings at the surface) (regulation3(5)(g), as amended by regulation 5(c)(iv)). This exception remainsbecause the Mines Miscellaneous Health and Safety Provisions Regulations1995 will be amended by the Management of Health and Safety at WorkRegulations 1999, where necessary, to give full effect to the samerequirements;
• offshore installations (regulation 3(5)(h)). This exception remains becausethe Regulations relating to offshore installations give full effect tothe same requirements;
• means of transport, other than ships (regulation 3(5)(i)), to which transportlegislation applies. Such workplaces are specifically excepted from therequirements of the Workplace Directive; and
• fields, woods or other land forming part of an agricultural or forestryundertaking away from buildings (regulation 3(5)(j)). Such workplaces arealso specifically excepted from the requirements of the Workplace Directive.

23. It should be noted that the removal of regulation 3(5)(a) ofthe 1997 Fire Regulations does not in any way override the requirementto apply for a fire certificate if the premises concerned meet the numericaland other thresholds set out in the designation Orders made in pursuanceof section 1 of the 1971 Act (the Fire Precautions (Hotels and BoardingHouses) Order 1972 and the Fire Precautions (Factories, Offices, Shopsand Railway Premises) Order 1989). The Fire Regulations apply in fullto such workplaces whether an application for a fire certificate is pendingor a fire certificate is in force under section 1 of the 1971 Act or wherethe premises are exempt from the requirement for a fire certificate byvirtue of the grant of exemption by a fire authority under section 5A ofthe 1971 Act (powers for fire authority to grant exemption in particularcases). Fire authorities may wish to inform certificate holders and thoseapplying for a certificate accordingly (see Annex A on page 8).The Regulations also continue to apply to those workplace premises whichwere issued with a means of escape certificate under the Factories Act1961 or the Offices, Shops and Railway Premises Act 1963.

24. Because the Fire Regulations apply in full to all certificatableworkplaces, provision is made in regulation 17(4), as amended,to resolve any conflict there may be between the terms of the certificatesand the provisions of the workplace fire precautions legislation (of whichthe Fire Regulations form part, see regulation 9(2)) in favour of the latter.However, fire authorities should note that where an application fora fire certificate is pending, section 5(4) of the 1971 Act (regardingsteps to be taken before a fire certificate can be issued) imposesa duty on them to serve a notice (in the appropriate circumstances),while the Regulations merely confer a power to serve an enforcementnotice under regulation 13. Accordingly, if the fire authority are notsatisfied with the fire precautions taken or proposed to be taken following

• an inspection of the premises, and
• an assessment of the adequacy of the employers risk assessment (or everyassessment in the case of multi-occupied premises) where such has beenmade in accordance with regulation 8(1)(b),

they must inform the applicant what steps need to be taken, in their opinion,to effect the necessary improvements before a fire certificate can be issued.Where necessary in these circumstances, it will be appropriate to servea section 5(4) notice on the applicant (and not an enforcement notice onthe employer(s) or other person(s) who may be responsible under regulation13) in respect of those matters specified in section 5(3) of the 1971 Act.A fire authority would not serve an enforcement notice on the employer(s)(or other person(s)) unless, if persuasion fails, such is required in respectof the need for suitable and sufficient risk assessment(s) to be made orto deal with any matters, required to meet the Fire Regulations, whichcannot be addressed in the section 5(4) notice or by the interim duty ofsection 5(2A) of the 1971 Act. When the fire authority are satisfied withthe fire precautions and are content that the legislation has been compliedwith in full, they must issue a fire certificate in line with the findingsof the risk assessment(s).

25. Paragraph (5)(e), as amended, does not except permanently mooredvessels, such as floating restaurants, or vessels permanently on dry landfrom the application of Part II of the Fire Regulations. They are not shipswithin the meaning of section 313(1) of the Merchant Shipping Act 1995because they are not operating as a vessel on water. (For the record,the "prison ship" HMP The Weare is a "floating structure", which has beendeclared a prison under section 33(2) of the Prison Act 1952, as substitutedby section 100(1) of the Criminal Justice and Public Order Act 1994.)

26. Paragraph (5)(g), as amended, does not except any workplace whichis deemed to form (part of) a quarry from the application of the Fire Regulations.(The fire authorities are the enforcing authorities for the purposes ofthe Fire Regulations.)

27. Paragraphs (6) and (7), with (8), provide a limited, but common-sensedispensation from Part II of the Fire Regulations in respect of specifiedemployees and premises. For example, it would not be appropriate at a firegroundor at the scene of an accident to consider the provision of fire safetysigns. Nor would it be right to compromise security unnecessarily by settingaside the well established procedures for evacuation carried out in prisonsand other premises where people are lawfully detained.

28. This regulation like regulation 5 substantially copies out thetext of certain articles of the Framework and Workplace Directives and(drawing on the preliminary note to the annexes) paragraph 5 and, inthe case of regulation 5, paragraph 4 of each of the annexes to the WorkplaceDirective. The courts can be expected to have regard to the terms of theDirectives in case of doubt.

29. It is important to note that what employers (or others in controlof a workplace) provide to comply with the requirements of this regulation and regulations 5 and 6 is for the purpose of safeguarding the safetyof employees in case of fire; and that the extent of such provision willbecome clear from the findings of the fire risk assessment (madeunder regulation 3(1) of the 1992 Management Regulations, as amended byregulation 8(1)(b) of the Fire

Regulations), taking full account of all the relevant circumstancesof the workplace, including its size, contents and use. In addition, despitethe emphasis on employee safety, this does not override the requirementto take into account the safety of other people in case of fireat the workplace (see regulations 4(1), as amended, and (2) and5(2)(c)) but more comprehensive consideration of their needs may relyon the requirements of other legislation (including the Disability DiscriminationAct 1995 which took effect on 1 October 1999) or rest on guidance suchas Firecode (in the case of healthcare premises, see paragraph 105).

30. Against this background, a workplace must be provided, under paragraph(1), with such fire extinguishers or other means for fighting fire as areappropriate. It will also be necessary to install fire detectors and firealarms where, in all the circumstances referred to above, their provisionis justified. Any non-automatic fire-fighting equipment provided in accordancewith this regulation such as fire extinguishers must be simple to use,kept where it will be easily accessible and be indicated by signs whereappropriate (i.e. indicated in accordance with the requirements imposedby the Health and Safety (Safety Signs and Signals) Regulations 1996 (S.I.1996/341) in relation to fire safety signs, being appropriate and durable(pictographic) signs, placed at appropriate points, which are properlymaintained and which comply with any applicable requirements set out inParts I to VII of Schedule 1 to the 1996 Regulations).

31. The amendment of lines 8 and 9 of paragraph (1) by regulation6 of the 1999 Fire Regulations was made so that the obligation to providefire-fighting equipment and fire detectors and alarms "to the extent thatis appropriate", in accordance with the requirements of the regulation,is not limited to workplaces which are buildings.

32. Employers (but not other persons) are required under paragraph (2)to take measures for fire-fighting in the workplace (e.g. the drawing upof a suitable emergency plan of action) where necessary for the purposeof safeguarding their employees in case of fire. Such measures as aretaken will be tailored to the circumstances of the workplace. Employersshall nominate a sufficient number of their employees to implement thosemeasures and ensure that they are adequately trained and equipped to carryout their responsibilities. This provision as paragraph 33 belowemphasises should complement rather than replace fire authorities fire-fightingrole. Nominated employees should be able to tackle a fire if itis safe to do so and they know how to do it safely. (They must not putthemselves at risk to fight fire : the priority is their personal safety.)

33. Under paragraph (2)(c), in order to safeguard the safety of hisemployees in case of fire, an employer must also arrange such contactswith the emergency services as are necessary to give effect, in particular,to rescue work and fire-fighting. Such arrangements involve a degree ofplanning on the part of employers. They must ensure that the emergencyservices are readily contactable in case a fire occurs (e.g. having a telephoneavailable for calling the fire brigade) complementing fire authoritiesexisting duty under section 1(1)(c) of the Fire Services Act 1947 to makeprovision for fire-fighting purposes by securing efficient arrangementsfor dealing with calls for the assistance of the fire brigade. They mustalso liaise with the emergency services when an incident occurs, and shouldbe asked to provide, wherever possible in advance, information requiredfor rescue work and fire-fighting purposes (e.g. in respect of any specialrisks involved in the workplace), so as to maximise the safety and efficiencyof such work.

34. Again, it is important to note that what employers (and others,as the case may be) provide to comply with the requirements of this regulationis for the purpose of safeguarding the safety of employees in case of fire;and that apart from keeping emergency routes and exits clear at all times(paragraph (1)) the extent of such provision will become clear from thefindings of the fire risk assessment, taking full account of all the relevantcircumstances of the workplace, including its size, contents and use.

35. Against this background, under paragraph (2)(a), the emergency routesand exits must lead as directly as possible to a place of safety (suchas a place beyond the building in which a person is no longer in dangerfrom fire). Also, there must be adequate emergency routes and exits foreveryone to escape quickly and safely : paragraph (2)(c) effectivelybuilds on paragraph (2)(b), since it is the total number of personsthat may be present at the workplace at any one time (whether or notthey are employed to work there) which will clearly have an important impacton the adequacy of the emergency routes and exits provided for the purposesof evacuation. The fire risk assessment will identify any persons for whomspecial arrangements may need to be made by virtue of their age, stateof health and physical and mental abilities or, in some circumstances,their location and activity in the workplace.

36. It is important to emphasise that the door requirements of sub-paragraphs(d) to (f) of paragraph (2) should be read like the other provisions in the context of their purpose, set out in the preamble to the paragraph,for therein ("...where necessary...in order to safeguard the safety ofemployees in case of fire") lies the flexibility that moderateswhat would otherwise be prescriptive requirements of an absolute nature.The findings of the fire risk assessment (referred to in paragraph 34above) are central. Where the risk to employees will be reduced by doorsprovided or designated as emergency doors opening in the direction of escape,their provision is justified. Also with the exception of premises usedfor keeping persons in lawful custody or detention, to which regulation3(7) refers where the risk to persons will be reduced, such doors (and,it follows, doors along escape routes) must not be so locked or fastenedthat they cannot be easily and immediately opened by any personwho may require to use them in an emergency.

37. Under paragraph (2)(g), the emergency routes and exits must be indicatedwith signs where the use of signs will reduce the risk to people escaping.(See paragraph 30 above for further details as to the statutoryrequirements in relation to fire safety signs.)

38. Under paragraph (2)(h), where emergency routes and exits requireillumination to safeguard the safety of employees in case of fire, theymust be provided with adequate alternative sources of illumination in casetheir normal lighting (natural or artificial) fails. What is provided willdepend on, and be in proportion to, what is needed in all the relevantcircumstances. (For example, where borrowed light from street lightingis available this may be all that is required.)

39. The extent of the maintenance employers (and others) are requiredto provide in accordance with this regulation is confined as it is inregulations 4 and 5 to that which is necessary for the purposes of safeguardingthe safety of employees in case of fire.

40. In that light, the workplace (the physical attributes such as theemergency doors) and any equipment and devices provided in accordance withregulations 4 and 5 to protect employees from the dangers of fire, suchas fire extinguishers, alarm systems and emergency lighting, shall be subjectto a suitable system of maintenance : they must be regularly checked andproperly maintained (including inspection and testing by a competent person,as necessary) at suitable intervals and any faults found rectified as quicklyas possible. (Fire safety officers should be familiar with the contentsof pages 17, 18 and 64 to 67 of the guidance, FIRE SAFETY Anemployers guide, and take them into account when responding to requestsfor advice about maintenance and testing of fire safety equipment.)

41. The references in the regulation to "efficient" should be read inthe same purposive light. Can the equipment and devices provided do theirjob properly and do they do it? For example, where any equipment (e.g.a fire alarm) is electrically operated, the necessary supply of electricitymust (unless switched off for the purpose of altering, maintaining or testingthe electrical system) be kept switched on at all times when the workplaceis occupied. Otherwise, although the equipment may be in working order(i.e. potentially capable of doing its job), it will not be in anefficient state (i.e. actually capable of fulfilling its safetypurpose). Other legislation may also have a bearing on efficiency. Whereequipment such as a fire alarm is a signal within the meaning of the Healthand Safety (Safety Signs and Signals) Regulations 1996 and that equipmentis electrically powered, there is a requirement in those Regulations fora back-up power source.

42. When maintenance is being undertaken it may be necessary to makeadequate alternative provision, e.g. by enhanced working practices, tocompensate for any deficiencies in the normal fire precautions.

(Paragraphs 43 to 58 should be read in the light of Appendix 28/4. PartIII of the Fire Regulations is about to be revoked and re-enacted bythe Management of Health and Safety at Work Regulations 1999.)

43. Part III amends the Management of Health and Safety at Work Regulations1992 so as to extend certain requirements of those Regulations beingprovisions which apply in relation to general fire precautions to encompassPart II of the Fire Regulations. However, subject to regulation 9 of theFire Regulations, the Management Regulations, as amended, retain theirstatus as provisions of health and safety regulations, within the meaningof the Health and Safety at Work etc. Act 1974 (section 53(1)), which areenforceable under that Act.

44. The effect of the introduction into certain provisions of the 1992Management Regulations of the words "and by Part II of the Fire Precautions(Workplace) Regulations 1997" is explained in paragraphs 45 to 58below. These references to the 1997 Fire Regulations should now be readas references to the 1997 Fire Regulations as amended.

45. Fire authorities should note that it is by virtue of regulation10, with 9, of the Fire Regulations, that they have responsibility forenforcement of the risk assessment and other provisions of the 1992 ManagementRegulations specified in regulation 9(2)(b), in so far as thoseprovisions impose requirements concerning general fire precautions to betaken or observed by an employer. (Where some other person has controlof a workplace to any extent, he is under a duty, enforced by the fireauthorities under regulation 10, to ensure that the general fire precautionsrequirements of Part II of the Fire Regulations are complied with, so faras relates to matters within his control.)

46. Paragraph (1)(a) extends the definition of "the preventive and protectivemeasures" in regulation 1(2) of the 1992 Management Regulations (interpretation).Such measures will therefore include those relating to fire precautionswhich have been identified by an employer, in consequence of the assessmentmade in accordance with regulation 3(1) of the 1992 Management Regulations,as measures he needs to take to comply with Part II of the Fire Regulations.The extension of the definition effectively extends the requirement onemployers (but not others) under regulation 4(1) of the 1992 ManagementRegulations (health and safety arrangements) to have arrangements in placeto cover fire safety. Having regard to the type of work carried out andthe size of his workplace, an employer must plan, organise, control, monitorand review the fire precautions measures taken to reduce the risk of fireand to protect employees from it whilst they are at work. It follows thatfire authorities must consider the health and safety management systemadopted by the employer in so far as it extends to those arrangements relatingto general fire precautions.

47. In addition, under regulation 4(2) of the 1992 Management Regulations,where an employer employs 5 or more people (whether or not they are atwork in the workplace at any one time or at separate workplaces),he must keep a record of the arrangements referred to above in respectof each workplace. (The requirement for a record depends on the numberof people employed by the employer and not where they work.) The recordshould be available for inspection when necessary (under section 19of the Fire Precautions Act 1971 as applied by regulation 17 of the FireRegulations).

48. Paragraph (1)(b) amends regulation 3(1) of the 1992 Management Regulations(risk assessment). That regulation without the amendment requiresan employer to make an assessment of what is needed to comply with the"relevant statutory provisions", which are defined in the Health and Safetyat Work etc. Act 1974 (section 53(1)). Thus, an assessment as to what isrequired to comply with sections 2 and 3 of the 1974 Act is already needed.Those sections impose general duties to safeguard the health and safetyof employees and others so far as is reasonably practicable duties whichrelate to the risk from fire as well as other risks. Paragraph 1(b) slightlyextends this requirement by explicitly requiring an assessment byan employer of the risk to his employees in case of fire whilst they areat work (other than in excepted workplaces), for the purpose of identifyingwhat is needed to comply with the general fire precautions requirementsof Part II of the Fire Regulations. Any necessary remedial measuresso identified will be reflected in the health and safety arrangements madeunder regulation 4(1), with 1(2) as amended, of the 1992 Management Regulations(see paragraph 46 above).

49. For the avoidance of doubt:

• by virtue of regulation 10(1), with 9(2)(b) (definition of "the workplacefire precautions legislation"), of the Fire Regulations, it is an offence,enforceable by fire authorities in respect of general fire precautions for employers not to carry out a risk assessment under regulation 3(1)of the 1992 Management Regulations, as extended by regulation 8(1)(b) ofthe Fire Regulations;
• failure to comply with the requirement to carry out a risk assessment (andits review where necessary) is subject to the offence provisions of regulations11 and (13 with) 15, like any other failure to comply with a provisionof the workplace fire precautions legislation; and
• there are no enabling powers for, nor any requirements on, the enforcingauthority formally to validate an employers risk assessment madeunder the regulation 3(1) of the 1992 Management Regulations, as amended but the employer may wish to seek advice, under section 1(1)(f) of theFire Services Act 1947, as to whether his risk assessment and itsoutcome (in terms of the fire precautions in place or to be installed)are adequate. He can expect suitable and sufficient goodwill advice fromthe enforcing authority, who will inspect his risk assessment, and theworkplace(s) to which it relates, to assess the level of compliancewith the Fire Regulations. If all is satisfactory, the authority shouldwrite to the employer to confirm that this is so as soon as practicableafter their inspection of the workplace(s). If not, enforcement actionshould begin with informal advice where appropriate. This may lead to theserving of an enforcement notice in due course, unless the circumstancesare sufficiently serious to require more immediate action.

50. Under regulation 3(3) of the 1992 Management Regulations, the riskassessment must be reviewed whenever there is reason to suspect that itis no longer valid or there has been a significant change in the mattersto which it relates.

51. Regulation 3 of the 1992 Management Regulations has also been amendedby regulation 2(4) of the Health and Safety (Young Persons) Regulations1997. Thus, having regard to the protection of young persons (those whoare not yet eighteen), employers shall not employ a young person without,in making or reviewing his risk assessment, having regard to that youngpersons particular needs. These needs include the extent of his healthand safety training (including fire safety training) required under regulation11 of the 1992 Management Regulations.

52. In addition, under regulation 3(4) of those Regulations, where 5or more people are employed by the employer (whether or not they are atwork in the same workplace at any one time or at separate workplaces),a record must be made by him of the significant findings of the risk assessment(or revised assessment) and any group of his employees identified by itas being especially at risk at each workplace. (The requirementfor a record depends on the number of people employed by the employer andnot where they work.) The record should be available for inspectionwhen necessary (under section 19 of the Fire Precautions Act 1971 asapplied by regulation 17 of the Fire Regulations). Current fire certificatesare not a substitute for risk assessment, but they may be accepted as partof the risk assessment record, supplemented as required, e.g. by appendingthe risk assessment findings, to reduce duplication of work.

53. Fire authorities will recognise that, with the above risk assessmentrequirements imposed directly on employers, this extension of fireprecautions legislation confirms the need to develop further a differentapproach to enforcement of fire safety in the working environment. It isnot for them to administer the legislative requirements of the Fire Regulationsin a traditional hands-on way such as is necessary to process an applicationfor a fire certificate under the 1971 Act. Instead, their role is to enforcethe Regulations (see Part IV below), using the information contained inthe employers risk assessment (where one has been made and recorded) asa basis for deciding whether or not, in their view, the requirements imposedon the employer by the Fire Regulations are being complied with.

54. Paragraph (1)(c) amends regulation 6 of the 1992 Management Regulations(health and safety assistance) so as to require an employer to appointan adequate number of competent persons to assist him to comply with hisobligations under the Fire Regulations. (Under regulation 6(5) of the ManagementRegulations, a person shall be regarded as competent where he has sufficienttraining and experience or knowledge and other qualities properly to performhis functions.)

55. Paragraphs (1)(d), (3) and (4) amend regulation 9 of the 1992 ManagementRegulations (co-operation and co-ordination) in relation to fire safety.Paragraph (1)(d) extends regulation 9 so that where a building is sharedby two or more employers, each employer (but not other persons) must co-operatewith the other employers concerned so far as is necessary to enable themto comply with the requirements imposed upon them by Part II of the FireRegulations. Paragraph (3) extends regulation 9 by substituting paragraph(1)(b) of that regulation so as to require employers sharing a workplaceto take all reasonable steps to co-ordinate the measures they take to complywith the requirements imposed upon them by Part II of the Fire Regulations.Paragraph (4) ensures that regulation 9 does not impose any co-operationand co-ordination requirement on a self-employed person in so far as thatregulation refers to Part II of the Fire Regulations (but, under paragraph(1)(c) of the said regulation, he must take all reasonable steps to informany employers with whom he shares a workplace (whether on a temporary ora permanent basis) of the risks to their employees health and safety arisingout of or in connection with the conduct by him of his undertaking).

56. Paragraphs (1)(e) and (4) amend regulation 10 of the 1992 ManagementRegulations (persons working in host employers undertakings). Where anyemployees from an outside business are employed to carry out work, theemployer in whose workplace that work is being carried out must providethe employer of those employees with easily understood details of any firerisks and the measures taken by him in compliance with the requirementsimposed upon him by Part II of the Fire Regulations. However, under paragraph(4), although self-employed persons must be told of the risks to theirhealth and safety as a result of working in an employers undertaking,there is no requirement on the employer to inform them of the measurestaken by him in compliance with the requirements imposed upon him by PartII of the Fire Regulations.

57. Paragraph (2) amends regulation 8 of the 1992 Management Regulations(information for employees), as substituted by the Health and Safety (YoungPersons) Regulations 1997 (S.I. 1997/135), to the following effect in relationto fire safety information. Every employer (but not other persons)must provide his employees with easily understood, relevant informationon:

(a) the risks to their health and safety in case of fire identifiedby his risk assessment (or that of another employer where relevant);

(b) the measures taken under regulation 4(2)(a) of the Fire Regulationsfor fire-fighting in the workplace to safeguard the safety of employeesin case of fire and the procedures to be followed in case of fire there(e.g. an emergency/evacuation plan); and

(c) the identity of those persons nominated under regulation 4(2)(b)of the Fire Regulations to implement such procedures in so far as theyrelate to the above fire- fighting measures.

58. Regulation 8 of the 1992 Management Regulations has been amendedby regulation 2(5) of the Health and Safety (Young Persons) Regulations1997 so as to require employers to provide parents of children (as respectsEngland and Wales, those not over compulsory school age, construed in accordancewith section 8 of the Education Act 1996) with information on those risksto their childrens health and safety (including safety in case of fire)at work identified by their risk assessments and the measures (to be) takento address those risks.

59. It is for fire authorities to determine their own enforcement policies.However, in their approach to enforcement of the Fire Regulations, theywill need to consider their existing inspection programme scheduling toensure that inspection of workplaces which pose a significant life riskin case of fire are a priority. They will be assisted in this matterwith the development of a risk based approach to frequency of inspectionof workplaces currently being undertaken as a joint initiative betweenthe Home Office and the Chief and Assistant Chief Fire Officers Association.This work forms part of a strategic approach to fire risk assessment beingdeveloped by a working party representing a cross section of fire serviceinterests. It is hoped that the guidance from the working party will beavailable in early 2000 (about February).

60. Fire authorities will also wish to continue to have regard for thepolicy on good enforcement practice set out in the Enforcement Concordat,which the Cabinet Office, the Local Government Association and others issuedin March 1998. Annex A to this Appendix provides an outline of the principlesand procedures which the Home Office recommends fire authorities to followto promote effective enforcement of the Fire Regulations, minimise burdenson those who are subject to them and maximise consistency of enforcementnationally. The following paragraphs provide additional guidance.

61. Fire authorities must be able to demonstrate that they are carryingout their duty to enforce the Fire Regulations. Regulation 10 (enforcement)does not impose a duty to cause workplaces within their area to be inspectedfor the purposes of enforcing the workplace fire precautions legislation(as defined in paragraph 75). However, there is an implicit needto inspect workplaces, given the power to serve enforcement and prohibitionnotices and to commence prosecutions. A failure to discharge the duty toenforce (by not exercising such power where appropriate) could result ina liability; and a failure to adopt an inspection policy and programme,to ensure that the authority is complying with this duty, may lead to thesame conclusion.

62. Fire authorities must also be able to show that they are carryingout their duty to enforce the Regulations in a suitable and sufficientmanner. It is of course important to take care to establish that thereis a breach of the Regulations before taking enforcement action. When non-compliancewith the requirements of the Regulations has been identified/established,it is clearly important that fire authorities should act in a timely manner.How far and how fast to enforce the law is a matter for their professionaljudgment, but it must be considered against the degree of risk involvedto employees in case of fire. There is an expectation that fire authoritieswill act reasonably and in accordance with the Enforcement Concordat.Before taking enforcement action, they must first be satisfied that reasonablesteps by an employer (or other person) have not been taken to avoid a foreseeablerisk of physical injury. Reasonableness on the part of the fire authoritywill have taken into account, among other things, the nature of the business,the degree of risk and all other relevant circumstances, including thetime that may be needed to obtain any planning and building regulationsapproval required and (provided it does not conflict with the need to ensurethat the requirements of the Regulations are met) due regard for the variousconstraints which employers may face in remedying identified deficienciesin the fire safety arrangements.

63. In every case other than where the risk of fire is so serious thatenforcement action cannot be delayed (e.g. where a prohibition notice hasto be served), it is intended that an enforcement notice should be servedonly after full negotiation (with written opinion where requested) betweenthe fire authority and the employer or other person concerned has failedto provide a satisfactory outcome in a reasonable timescale. As part ofthat process, the fire authority will want to tell the employer of allcurrent or proposed consultation that they are required to undertake byregulation 13(5) of the Fire Regulations and pass on all relevant informationand advice resulting from such consultation to the employer. Wherever possible,the employers point of view should be considered carefully before thefire authority take any enforcement action. The fire authority should providethe employer with a written statement of the reasons for their decisions.Such statements need to be clearly expressed and persuasive. The burdenof proof that a breach has taken place lies with the fire authority.

64. By following the Enforcement Concordat, notices for contraventionswhich do not pose a serious risk should not be served by fire authoritiesuntil all other approaches have been tried. The fire authorities shoulduse their powers of persuasion as they do now in applying the Fire PrecautionsAct 1971 to avert more formal measures for those infringements that areof a minor nature. Enforcement notice action should only be required exceptionallyor where there is serious risk. Accordingly, the Fire Regulations shouldnot lead to a higher level of enforcement action being taken than is generallythe case now.

65. There will be careful monitoring of the volume of enforcement proceedingsundertaken by fire authorities. Information gathered on this will be inthe form of:-

• continued collection of relevant data from them on their enforcementaction in respect of the Fire Regulations;
• the publication of such data in the annual reports of HM Chief Inspectorof Fire Services; and
• continued monitoring of fire authorities enforcement of the Regulationsas part of HM Inspectors statutory responsibility, when inspecting fireauthorities, to obtain information as to the manner in which those authoritiesare performing their functions (in accordance with section 24 of the FireServices Act 1947).

66. Good consultation arrangements between fire authoritiesand other enforcing authorities are essential. The following indicatesthe close relationship there is between building regulation and fire safetylegislation and is also given for illustrative purposes. A proposed buildingor alteration designed to comply with the Building Regulations 1991 willimmediately be subject to the Fire Regulations on completion andoccupation by employees. Fire authorities will therefore wish to have regardto the guidance, on the interaction between building control bodies andfire authorities in England and Wales, contained in the Building Regulationand Fire Safety Procedural Guidance Document. The guidance in thisdocument is intended to avoid, as far as is possible, an occupier of abuilding, in respect of which building work has been approved under buildingregulations, having to carry out further structural or other alterationsto meet the needs of fire safety legislation applying to its firstuse. It is, therefore, essential that fire authorities respond fully toany consultation by a building control body, clearly identifying thosefire precautions they believe are necessary and the rationale for thosefire precautions. This consultation process should, therefore, ensure thatthere will be no significant increase in the number of occasions when additionalfire precautions will be required after building regulation approval hasbeen given. The issue of a certificate of completion by the building controlbody, or other indication that the building works meet the requirementsof the building regulations, will then clearly have a positive influenceon the fire risk assessment that employers must make and the consultationrequirements of regulation 13(5) of the Fire Regulations. However, notwithstandingthe consultation process, it is accepted that in very limited circumstances,the risk assessment findings may themselves result in the need for changesto the type or level of fire precautions.

67. A revision of the procedural guidance document is currentlybeing undertaken and it is hoped that a consultation draft will be availablein early 2000 (about March). Meanwhile, Dear Chief Officer letter 1/99gives interim advice relating to building regulations submissions andthe consultation procedures.

68. Deleting most of the exceptions from the application provisionsof the Fire Regulations does not create, but rather extends, existing legislativeoverlap (e.g. in certificated and licensed premises). It has alreadybeen noted that the purpose attached to individual regulations inPart II of the Regulations relates to safeguarding the safety of employeesin case of fire and fire authorities should enforce accordingly. It isimportant that application of the requirements of the Regulations doesnot adversely affect the fire safety arrangements at workplaces where existingstatutory controls provide for a level of fire safety for all personsat the workplace which is at least as good as would result from the applicationof the Regulations alone. The Regulations may not be sufficienton their own to ensure the safety of all persons resorting to the premises.It may therefore be appropriate, following consultation, to deferto the application of other legislation where that extends further to non-employeesresorting to the premises (over and above the reference to such personsin regulations 4(1), as amended, and (2) and 5(2)(c)). Care shouldbe taken to use the legislation which does the job, i.e. to enforceonly the most appropriate legislation in each case. It is also importantto record the decision as to which legislation is the better way of controllingsafety at the workplace, the reason(s) for that decision, and, where relevant,how compliance with the identified legislation meets the requirements ofthe Fire Regulations.

69. If the employers risk assessment identifies shortcomings in thefire safety provisions at a workplace which clearly concern the safetyof the employees, they will be for the fire authority to addressunder the Fire Regulations, consulting where necessary. However, if theconcerns are of wider scope (e.g. the essential need to maintain the safetyof all persons resorting to the premises in the light of the neednot to reduce the standard of fire safety already achieved), then use ofthe provisions of the 1971 Act and orders and regulations made under thatAct in respect of fire certificated premises and the Fire Precautions (Sub-surfaceRailway Stations) Regulations 1989 may be appropriate. In other cases,subject to consultation, use of whatever specific fire safety legislation/codes/guidanceis already applicable to the workplace in question is likely to remainsufficient for the purposes of deciding upon the most appropriate methodof enforcement.

70. When fire authorities inspect premises to which the Fire Regulationsapply, for the purposes of providing advice to another enforcing authoritywhen requested, in accordance with existing statutory requirements to consult,it will normally be appropriate, when responding to the request, to informthe other enforcing authority of any intention to inspect those premisesat the same time for compliance with the Regulations.

71. Against the backdrop of participation in the Concordat, fireauthorities will wish to reinforce the consistency of their enforcementactivity by undertaking all necessary consultations, co-operating withother enforcing authorities where appropriate and co-ordinating such jointactivity.

72. Regulations 7 to 13 of the 1999 Fire Regulations amend PartIV of the 1997 Fire Regulations largely in order to simplify the enforcementregime and thereby avoid the complications and cost to business and fireauthorities of pursuing two separate legal procedures. The result is areplacement of much of the 1997 Fire Regulations enforcement regime withthe familiar, effective procedure of enforcement notice (where necessary,following the issue of an informal letter of advice), prohibition noticefor particularly serious cases and with rare exceptions i.e. where therisk to employees is so serious as to demand the immediate instigationof legal proceedings under regulation 11 (possibly in combination withthe serving of a prohibition notice) prosecution with criminal sanctionsas the last resort. The enforcement provisions, in their amended form,are set out in the Schedule to the 1999 Fire Regulations (regulation17 refers). The main changes are summarised in the ExplanatoryNote attached to the 1999 Fire Regulations and the following paragraphsset out the effect of the amendments in detail.

73. This regulation and regulation 10 have the following effect.The requirements of the 1992 Management Regulations, as amended by PartIII of the Fire Regulations, continue to be enforced by the Health andSafety Executive or local authorities, except in so far as theycover general fire precautions in workplaces* to which Part II of the FireRegulations apply. (* But see regulation 7 of the 1999 Fire Regulationsto which paragraph 75 below refers.)

To the extent that the 1992 Management Regulations, as amended, imposerequirements concerning general fire precautions to be taken or observedby an employer in such workplaces, those requirements, together with therequirements of Part II of the Fire Regulations, have been enforceableby the fire authority (under regulation 10) since 1 December 1997.

74. Paragraph (1) of regulation 9 (when read with paragraph (3)) disappliesspecified enforcement and offence provisions of the Health and Safety atWork etc. Act 1974 from workplaces caught by the Fire Regulations in sofar as those provisions extend to the "the workplace fire precautions legislation"(as defined by paragraph (2) of this regulation). The purpose and effectof the disapplication is, as indicated above, to transfer enforcement responsibilityfor general fire precautions in such workplaces to fire authorities underthe Fire Regulations.

75. Paragraph (2) defines "the workplace fire precautions legislation".The term, as amended by regulation 7 of the 1999 Fire Regulations,encompasses

• Part II of the Fire Regulations except in so far as that Part appliesto

(i) any workplace which is or is in or on a ship within themeaning of section 313(1) of the Merchant Shipping Act 1995 when such aship is in the course of construction or is in the course of repair bypersons who include persons other than the master and crew of the ship;
(ii) any workplace, other than a building on the surface at a mine,to the extent that it comprises premises to which the Fire Certificates(Special Premises) Regulations 1976 apply; and

• relevant provisions of the 1992 Management Regulations, as amended by PartIII of the Fire Regulations, so far as they extend to general fire precautions(as defined in paragraph (2)) to be taken or observed by an employer innon-excepted workplaces. The relevant provisions of the 1992 ManagementRegulations not only include those amended by Part III of the Fire Regulations(to which regulation 8 above refers) but also certain other provisionswhich extend to general fire precautions, namely regulations 7 (proceduresfor serious and imminent danger and for danger areas) and 11(2) and(3) (training), whose main provisions are set out in paragraphs78 and 79 below (but not in full).

(Also see paragraph 77 below for an explanation of the effect theexceptions at (i) and (ii) above have on where responsibility for enforcementof general fire precautions at such workplaces lies.)

76. It should be noted that the meaning of "the workplace fire precautionslegislation" in regulation 9(2) of the Fire Regulations will also be slightlyextended by the Management of Health and Safety at Work Regulations 1999in the following ways :-

• a new regulation 4 with accompanying Schedule to the Management of Healthand Safety at Work Regulations 1999 ("the 1999 Management Regulations")requires an employer to implement any preventive and protective measureshe takes, e.g. in respect of fire precautions, on the basis of the generalprinciples of prevention set out in Article 6.2 of the Framework Directive.These include avoiding risks, evaluating the risks which cannot be avoided,combating the risks at source, replacing the dangerous by the non-dangerousor the less dangerous and giving appropriate instructions to employees.(These principles underpin an employers health and safety arrangementsto which paragraph 46 above refers.)
• A new regulation 7(8) in the 1999 Management Regulations requires thata competent person in the employers employment shall be appointed forthe purposes of paragraph (1) of regulation 6 (health and safety assistance)in preference to a competent person who is not in such employment. (Seeparagraph 54 above.)

77. The effect of removing the workplaces referred to in paragraph 75(i)and (ii) above from the definition of "the workplace fire precautions legislation"(and consequently from the disapplication of regulation 9(1) of the FireRegulations) is to make the provisions of that legislation, so far as theyrelate to those workplaces, health and safety regulations enforceableunder the Health and Safety at Work etc. Act 1974 but note that, in thecase of ships to which the Fire Regulations apply, there are equivalenthealth and safety regulations and fire precautions regulations under theMerchant Shipping Act 1995. Thus, for such ships and special premises (otherthan buildings on the surface at a mine), the status quo is beingmaintained with regard to responsibility for enforcement of general fireprecautions. (For example, the Health and Safety Executive via theNuclear Installations Inspectorate will remain the enforcing authorityfor special premises as applied to nuclear power stations.) In allother workplaces (including those in buildings on the surface at a mine)which are subject to the workplace fire precautions legislation, otherthan workplaces to which regulations 18 to 20 of the Fire Regulationsapply, the fire authority is the enforcing authority.

78. Under regulation 7 of the 1992 Management Regulations (proceduresfor serious and imminent danger and for danger areas), every employer needsto establish procedures to be followed in the event of serious and imminentdanger arising to persons at work in his undertaking; and to nominate asufficient number of competent persons to implement those procedures inso far as they relate to the evacuation from premises of persons at workin his undertaking. In case of fire, this would involve a fire action plan/firedrill. Employees and others at work should know when to stop work and howto move to a place of safety. (Under regulation 7(3) of the ManagementRegulations, a person shall be regarded as competent where he has sufficienttraining and experience or knowledge and other qualities to enable himproperly to implement the evacuation procedures referred to above.)

79. Under regulation 11(2) and (3) of the 1992 Management Regulations,an employer must provide his employees with adequate health and safetytraining, including fire safety training, on their recruitment andwhen they are exposed to new or increased risks. The training should berepeated periodically where appropriate, be kept up to date and take placeduring working hours.

80. Fire authorities should note that, in keeping with the general approachadopted by the Fire Regulations, "general fire precautions" is definedin paragraph (2) as meaning those measures which are to be taken or observedin relation to the risk to the safety of employees in case of firein a non-excepted workplace, other than any special precautions in connectionwith the carrying on of any manufacturing process. (Such special precautionsremain regulated by the 1974 Acts provisions.)

81. Paragraph (1) places a duty on every fire authority to enforce theprovisions of the workplace fire precautions legislation (as defined inparagraph 75 above) within their area. For that purpose they willuse inspectors appointed by them under section 18(1) of the 1971 Act sinceparagraph (2) offers no alternative means whereby such functions may becarried out on their behalf by other persons.

82. Regulation 8 of the 1999 Fire Regulations removes the requirementin paragraph (3), with (4) and (5), for any inspector appointed by a fireauthority, or any officer of a fire brigade acting on behalf of a fireinspector, to give a written opinion explaining any breach of the workplacefire precautions legislation and what action (in the inspectors opinion)could be taken to remedy it. However, notwithstanding the lack ofstatutory requirement, fire authorities are expected to continue with theirexisting informal practices. If an employer or another person with obligationsin respect of the workplace in question asks for information, he shouldbe given it (under section 1(1)(f) of the Fire Services Act 1947 whereappropriate) in accordance with established good practice the provision,where and as soon as practicable, of written advice which is clearly expressedand distinguishes between that considered necessary to meet the requirementsof legislation and that of a goodwill nature which the recipient is freeto accept or reject. Such an approach is without prejudice to any subsequentenforcement action a fire authority may take. (See paragraphs 142and 143 regarding the obligations on employers as to the informationthey, in turn, should provide to their employees and their employees representatives.)

83. Where appropriate, fire authorities will wish to secure employerscompliance with the Fire Regulations without the threat of enforcementaction and it is therefore important to explain clearly in plain language the reasoning behind their view of what is necessary to meet the requirementsof the Regulations. Also, there is nothing to prevent an authority fromissuing a written opinion if, at their discretion, this seems appropriate.

84. Paragraph (6) extends the scope of sections 24 and 33(1) of theFire Services Act 1947 and reflects similar provision in section 29 ofthe 1971 Act.

85. Paragraph (7) relates to a prohibition on fire authorities in Scotlandagainst instituting proceedings for any offence. It reflects a similarprovision in section 18(1) of the 1971 Act.

86. Regulation 9 of the 1999 Fire Regulations amends regulation11 of the 1997 Fire Regulations to remove the requirement that a personsfailure to comply with any provision of the workplace fire precautionslegislation must be intentional or due to his recklessness in order forhim to commit an offence under this regulation, to remove the requirementthat such failure must place employees at risk of death or serious injury"which is likely to materialise", and to introduce a defence of due diligence.

87. The above changes considerably simplify the terms of applicationand operation of this offence provision without modifying its purpose.The references to:-

still tend to imply as the title of the regulation continues to proclaim that the provision is designed to address serious cases of abuseof the requirements of the legislation. Also, action under this regulationmay be taken in conjunction with the serving of a prohibition notice undersection 10 of the 1971 Act, as amended by regulation 12, to prohibitor restrict the use of the workplace in the light of the seriousnessof the risk to persons there in case of fire.

88. Under the workplace fire precautions legislation, the primary dutyon employers (and other persons, so far as relates to matters within theircontrol) is to take reasonable care for the safety of their employees incase of fire at the workplace. This duty is broadly based on the conceptof reasonableness inherent in the making by the employers of a suitableand sufficient assessment of risk; and where they fail to take such care for example, by not remedying any known defects within a reasonable time must mean that the risk of physical injury or to life is reasonably foreseeable.In such circumstances, in considering whether there has been a breach ofthe legislation of sufficient magnitude to trigger the application of thisregulation in its amended form, it is necessary for fire authorities toform a reasoned and persuasive view that the risk identified as a resultof the breach is itself of sufficient magnitude for it to be regarded asone which places one or more employees at risk of serious personal injuryin case of fire.

89. Under paragraph (2), if convicted, a person found guilty of an offenceunder this regulation will be liable to a fine and/or imprisonment.

90. Under paragraph (2A), inserted by regulation 9(b) of the1999 Fire Regulations, it will be a defence if the person charged can showthat he took all reasonable precautions and exercised all due diligenceto avoid committing the offence.

91. The application of section 10 of the Fire Precautions Act 1971 andthe associated rights of appeal and offence provisions of sections 10Aand 10B have been extended to complement the enforcement tools availableto the fire authorities. (This has been done by making the Fire Regulationsunder sections 35, 40(8) and 43(1) of the 1971 Act to the necessary extent.)Before the 1997 Fire Regulations came into force on 1 December 1997, section10 allowed a fire authority to serve a notice to prohibit or restrict theuse of premises (within the meaning of section 43(1) of the 1971 Act, i.e.buildings or parts of a building) if in their opinion there was, or wouldbe, serious danger to people on such premises in case of fire. Undersection 10B, it was an offence for any person to contravene any prohibitionor restriction imposed by the notice; and, if convicted of such an offence,the person found guilty was liable to a fine and/or imprisonment. However,the application of sections 10 to 10B would not extend to section 35 workplaces tents and other movable structures (other than vessels), places of workin the open air and (with effect from 1 December 1999) vessels remainingmoored or remaining on dry land without the amendment introduced by thisregulation, as amended. (Fire authorities should note that regulation10 of the 1999 Fire Regulations amends regulation 12, applyingsection 35(a) of the 1971 Act by prescribing vessels remaining moored orremaining on dry land as "relevant workplaces" within the meaning of regulation12(2).)

92. Guidance on the use of section 10 is to be found in Appendix 14/4of Fire Precautions Act 1971 Circular No. 14. Prohibition notices shouldcontinue to be used when the conditions referred to in section 10 are foundto exist. Fire authorities should note that any reference to "premises"in the Appendix, and the standard form attached as an annex thereto, shouldbe read so as to include a reference to tents and other movable structures(other than vessels), places of work in the open air and (with effect from1 December 1999) vessels remaining moored or remaining on dry land whichare "relevant workplaces" within the meaning of regulation 12(2).They should also note that paragraph 7 of the Appendix does notapply.

93. It is possible to envisage circumstances in which both a prohibitionnotice and an enforcement notice (under regulation 13(1), asamended) can be served concurrently in respect of the same workplace.For example, the former might restrict the use of part of the workplacewith immediate effect, in the light of the seriousness of the risk to personsthere in case of fire as a result of inadequate means of escape, whilstthe latter addressed serious shortcomings in the employers risk assessmentwhich fell short of the serious non-compliance to which regulation 11,as amended, applies.

94. Paragraph 19 of Appendix 28/1 indicates that for reasons of simplicityand consistency and after consultation with business interests, the Governmentdecided to replace the enforcement regime of the 1997 Fire Regulations(a hybrid system of criminal and civil sanctions) with a criminal sanctionsonly regime that is in line with all other comparable, existing fire safetyand health and safety legislation. Accordingly, regulation 11(a) and(b) of the 1999 Fire Regulations amend the title of this regulationand paragraph (1), respectively, to reflect the fact that enforcement noticesmay no longer be served only where employees are placed at serious riskin case of fire, as defined by regulation 11(1) in its unamendedform (i.e. "a risk of death or serious injury which is likely to materialise").

95. Regulation 13, as amended, makes provision for a systemof enforcement notices. Under the modified paragraph (1), where a fireauthority are of the opinion that an employer (or other person) has failedto comply with any provision of the workplace fire precautions legislationin respect of a workplace, or employees who work in a workplace,they may serve an enforcement notice on that person. (As the referenceto section 9D of the 1971 Act in paragraph (5)(a) suggests, this regime with regulations 14, as amended, and 15 reflects, withnecessary modifications, sections 9D to 9F of the 1971 Act, which, respectively,empower fire authorities to serve improvement notices on occupiers of uncertificatedpremises, in certain cases where they are of the opinion that the dutyimposed by section 9A (as to means of escape and for fighting fire) hasbeen contravened; provide rights of appeal against improvement notices;and make provision as to offences. See paragraphs 144 and 145on regulation 22 with respect to the disapplication of section 9A of the1971 Act.)

96. Where a fire authority, who may serve an enforcement noticeunder paragraph (1), actually do so, it is important that they explainclearly why they have decided to take this course of action. An enforcementnotice served by a fire authority in accordance with this regulation musttherefore explain:

(i) why the fire authority are of the opinion that there isa failure to comply with the workplace fire precautions legislation; and

(ii) what they consider needs to be done to rectify the situation;

(iii) it must specify a period within which the work must be completed.(In so doing, fire authorities will wish to take into account all relevantcircumstances and, in particular, bear in mind that their assessment ofwhat should be done and how long it may take will depend, in some circumstances,on the outcome of consultation with the local building control authorityor other relevant person (under paragraph (5) see paragraphs 99 to105 below)); and

(iv) explain the procedure for appealing against the notice. (The bringingof an appeal has the effect of suspending the operation of the noticeuntil the appeal is finally disposed of or withdrawn. See regulation14 (4), as amended by regulation 12(c) of the 1999 Fire Regulations.)

97. Paragraph (2) recognises that there may be breaches of the workplacefire precautions legislation which may be of a serious type replicatedin a workplace or in respect of employees who work in a workplace situatedoutside the fire authority area in which they first come to light (forexample, a shortcoming in the evacuation procedure). In these circumstances,the fire authority ("fire authority A") which identifies the breach mayinclude requirements in the enforcement notice served by them under paragraph(1) concerning that workplace or those employees, but not before consultingthe fire authority ("fire authority B") in whose area the workplace issituated. (Note however that although, in the above circumstances, fireauthority A are required to consult fire authority B before serving theenforcement notice, any failure by them to consult will not invalidatethe notice (see paragraph (8), but note paragraph 107 below). Theimplication here is that there may be circumstances, e.g. where the riskis so serious, where consultation is not possible.) Those breaches of requirementsrelating to a workplace or in respect of employees who work in a workplacesituated outside fire authority As area are enforceable by that authorityprovided they have consulted fire authority B. There will only be one noticeserved on the employer (or other person) covering all the relevant workplacesand employees. This procedure will therefore contribute to consistent applicationof the Fire Regulations nationally.

98. Regulation 11(c) of the 1999 Fire Regulations has revokedparagraph (3) and thereby removed the written notice of intent procedure,which was applicable before enforcement action might be taken under the1997 Fire Regulations and which incorporated the provision to make writtenrepresentations to the fire authority or oral representations to a personnominated by that authority (about any relevant matter relating to theapparent breach of the legislation and the fire authoritys proposals).The related provisions in paragraphs (4) and (7) have also been revoked.

99. Paragraph (5) of the 1997 Fire Regulations effectively carried forwardinto those Regulations the requirement to consult under section 17 of the1971 Act. This requirement has been further extended by regulation 11(d)of the 1999 Fire Regulations, so as to impose further obligations on fireauthorities to consult before serving an enforcement notice in certaincases (i.e. where approved inspectors and local authorities with responsibilitiesfor sports ground facilities are concerned).

100. Fire authorities will be familiar with the procedure under section17 of the 1971 Act whereby, for example, before serving a "steps" notice(under section 5(4) of that Act) or an improvement notice (under section9D) requiring an occupier to make structural alterations to a building,they must first consult with the local building control authority aboutwhat they propose. Now, for the purposes of consultation under the FireRegulations, they are called upon to treat an enforcement notice (whichis addressed to an employer or other person) as if it were an improvementnotice.

101. However, there are several important points to note about the consultationprovision:

(i) as the reference to "an alteration to a building or structure"in paragraph (5) is unqualified, it seems appropriate that the term shouldbe construed widely. (The reference to structure was added by regulation11(d)(i) of the 1999 Fire Regulations);

(ii) the requirement to consult has been extended, by regulation11(d)(ii), specifically to include approved inspectors wherethey have responsibility for ensuring compliance with building regulations i.e. in the case of a building or structure in England or Wales in relationto all or any part of which an initial notice given under section 47 ofthe Building Act 1984 is in force. Reciprocal obligations on approvedinspectors to consult fire authorities, akin to section 16 of the 1971Act (duty of local authority to consult fire authority in certain casesbefore passing plans), will be achieved by virtue of an amendment to theBuilding (Approved Inspectors etc.) Regulations about which guidance willbe issued by the Department of the Environment, Transport and the Regionsin due course. See paragraph 102 below for further consideration;

(iii) regulation 11(d)(ii) also extends the requirement to consultto include local authorities with responsibility for sports grounds safety.See paragraphs 122 to 131 (on regulation 17A) belowfor detailed consideration of this provision;

(iv) paragraph (5)(b) of the 1997 Fire Regulations had already significantlyextended the requirement to consult to include any other person (whichincludes any other enforcing authority and any other corporate or incorporatebody) whose consent to the alteration to a building (and now also to astructure) would be required by or under any enactment.

102. The statutory requirement to consult an approved inspector (AI) beforeserving an enforcement notice applies only in relation to an AI whose initialnotice is in force, i.e. to an AI who is actively involved withthe building or structure by virtue of his statutory involvement for solong as it lasts. As part of the consultation process, the fire authoritywill want to tell the employer of all current or proposed consultationthat they are required to undertake by regulation 13(5) and consider carefullythe employers point of view, prior to serving an enforcement notice; and,in forming that view, the above procedure will allow the employer to confer,where he wishes to do so, with any "active" AI or with any AI who to hisknowledge has been involved with the building or structure, including,in particular, any AI who has issued a final certificate.

103. Fire authorities will have recognised that paragraph (5)(b) ofthe Fire Regulations has a very wide application. For example, an alterationto a historic building (to which pages 68 and 69 of the guidance,FIRE SAFETY An employers guide, refers) will require the consentof English Heritage (etc.) as appropriate in connection with the servingof an enforcement notice. In this respect, fire authorities will also wishto be familiar with the guidance on the protection of historic buildingscontained in Heritage Under Fire (cited on page 82 of FIRESAFETY An employers guide), and have regard to Approved Document B(1992 edition) relating to the Building Regulations 1991 which setsout, in paragraphs 0.11 to 0.14, the alternative approaches that can beapplied to existing buildings and, in particular, those of special architecturalor historic interest.

104. Care must also be taken over consultation in respect of ecclesiasticalbuildings. A fire authority must consult those responsible for the Churchof Englands legal controls before serving any enforcement notice relatingto a matter for which a faculty or other approval would be a legal requirementunder those controls. For example, any alterations to an Anglican cathedralwill require consultation with the Cathedrals Fabric Commission for Englandas their decisions to approve or reject alterations to such buildings [wherepersons are employed to work] are binding under the Care of CathedralsMeasure 1990. In the case of Church of England churches, which aresubject to the faculty jurisdiction and where alterations will requirea faculty from the consistory court of the diocese, the first point ofcontact should be with the diocesan secretary, who will normally referthe fire authority to the appropriate diocesan officers. These buildingsand their associated legislation are cited as examples. There are, of course,many others.

105. In addition, although statutory consultation by the fire authoritymay not be required, that authority will wish, where necessary, toliaise and co-operate with other enforcing authorities (e.g. housing,education, health and some licensing authorities) who have responsibilitiesfor the provision of general fire precautions in workplaces under otherlegislation responsibilities which have not been repealed by the FireRegulations. It is important that the exercise of fire authorities dutiesis as compatible as possible with that of other relevant authorities anddoes not prejudice the discharge of any of their functions without good,clearly understood and agreed reason. Particular attention is drawn tothe risk assessment based approach to healthcare premises contained inFirecode. The Home Office continues to recommend this suite of documentsto fire authority personnel for use when responding to requests for advicefrom, and in their discussions with, healthcare managers and others regardingthe application of the Fire Regulations to healthcare workplaces.

106. Under paragraph (6), where an enforcement notice has been servedby a fire authority, it may be withdrawn by them at any time before theend of the period specified in the notice; or the time allowed in whichto complete the work may be extended or further extended if an appeal againstthe notice (under regulation 14, as amended) is not pending.

107. Paragraph (8) of the 1997 Fire Regulations has been amended byregulation 11(e) of the 1999 Fire Regulations as a result of the combinedeffect of regulations 8 and 11 of those Regulations (whichremoved the requirement for enforcing authorities to give a written opinionexplaining any breach of the Fire Regulations and to give a written noticeof intent before enforcement action is taken under the Regulations). Now,under paragraph (8), any failure on the part of a fire authority to consultunder paragraph (2) or (5), as amended, of regulation 13 does not makean enforcement notice void. However, fire authorities will wish to takecare to act in accordance with the requirements of this regulation as theycan of course expect a court, on appeal under regulation 14(2), to taketheir omissions fully into account when exercising its power to cancelor modify the enforcement notice.

108. In serving an enforcement notice, fire authorities in England andWales may use the standard form attached as Annex B to this Appendix, witha view to providing a consistent approach nationally. (But note paragraph3 of Appendix 28/4.) It is in the interest of the fire authority, in orderto be able to demonstrate that they have exercised their powers under thisregulation in a responsible way, to obtain proof that the person on whomor to whom, as the case may be, the notice is served, has received thenotice.

109. This regulation has been amended by regulation 12 of the1999 Fire Regulations. As a result of the amendments to regulation 13and the revocation of regulation 16, the appeal provisions of paragraphs(1), (2) and (4) now mirror, with necessary modifications, the provisionsof section 9E of the 1971 Act (rights of appeal against improvement notices)with which fire authorities will be familiar.

110. Under paragraph (1), with (5) and (6), an employer or other personon whom an enforcement notice is served has, if he wishes, 21 days fromthe day on which the enforcement notice is served in which to appeal againstthe notice to a magistrates court in England and Wales or the sheriffin Scotland.

111. Under paragraph (2), the court may cancel or affirm the enforcementnotice either in its original form or with such modifications as it maydecide.

112. Paragraph (3) has been revoked because regulation 11(c)of the 1999 Fire Regulations removed regulation 13(3) of the 1997Fire Regulations.

113. Regulation 12(c) significantly amends paragraph (4). Now,where an appeal is lodged, the operation of the enforcement notice is suspendeduntil the appeal is finally disposed of or withdrawn. (A fire authoritycan always opt for use of a prohibition notice under section 10 of the1971 Act if, in their opinion, employees are put at serious riskin case of fire at the workplace. An appeal under section 10A(3) of theAct against the prohibition notice will not have the effect of suspendingthe operation of the notice, unless, on the application of the appellant,the court so directs (and then only from the giving of the direction).)

114. Under paragraphs (1) and (2), contravention of any requirementof an enforcement notice is a criminal offence punishable by a fine and/orimprisonment. Under paragraph (3), it will be a defence if the person chargedcan show that he took all reasonable precautions and exercised all duediligence to avoid committing the offence.

115. Regulation 16 of the 1997 Fire Regulations, which enabledfire authorities to apply to the courts for an enforcement order requiringany breach of the workplace fire precautions legislation to be remedied,has been revoked by regulation 13 of the 1999 Fire Regulations.However, by virtue of regulation 18 of the 1999 Fire Regulations,if any enforcement order is still in force on 30 November 1999, it may,for the purposes of regulation 15, be enforced as if it were an enforcementnotice served under regulation 13, as amended by regulation 11of the 1999 Fire Regulations. Accordingly, the fire authority willhave the powers

• to withdraw such deemed to be notices at any time before the end of theperiod specified in them for the required action to be completed; and
• if an appeal is not pending, to extend or further extend the period specifiedin the notice.

Further, on appeal against the notice under regulation 14(2), the courtwill have the power to cancel or affirm the notice.

116. The Fire Regulations were primarily made under the European CommunitiesAct 1972, but that Act does not contain the supporting provisions essentialfor the smooth administration of secondary legislation. It was thereforenecessary to place the Regulations in a suitable, wider legislative context.Accordingly, regulation 17 applies, with some necessary modifications,the sections of the Fire Precautions Act 1971 specified in paragraph (2)of the regulation to the provisions of the workplace fire precautions legislation,making the necessary adaptations to do so. As a result, under paragraph(1), the requirements of the workplace fire precautions legislation are,in effect, deemed to be requirements of regulations made under section12 of the 1971 Act for the purposes of applying the specified sectionsof that Act; and, among other things, the references to "premises" and"owner"/"occupier" in the specified sections are extended to include "workplace,other than an excepted workplace" and "employer" respectively.

117. Paragraph (2) lists sections of the 1971 Act that are necessaryto administer the Fire Regulations properly and fairly. Accordingly, forthe purposes of the Fire Regulations :-

(i) section 16 (as modified by paragraph (3)) requires localauthorities (in England and Wales) to consult the fire authorities beforepassing plans in connection with the erection, extension or structuralalteration of a workplace to which Part II of the Fire Regulations applies(also see paragraph 101(ii));

(ii) section 19 confers powers on inspectors and fire inspectors toenter and inspect workplaces for the purpose of giving effect to the FireRegulations;

(iii) section 20 enables a fire inspector, with the consent of the relevantfire authority, to authorise an officer of the fire brigade maintainedby the fire authority in whose area a workplace is situated to exerciseon his behalf the powers he has under section 19 in respect of workplacesto which the Fire Regulations apply;

(iv) sections 21 and 22(1), as modified by paragraph (3), createoffences respectively of unauthorised disclosure of information and themaking of false statements in connection with workplaces to which the FireRegulations apply;

(v) section 23 extends the liability of directors and members of bodiescorporate for their acts and defaults in connection with the commissionof an offence under the Fire Regulations committed by a body corporate;

(vi) under section 25 (as modified by paragraph (3)), it shall be adefence for the person charged in any proceedings for an offence in connectionwith sections 21 and 22(1) of the 1971 Act, as applied by this regulation,if he can show that he took all reasonable precautions and exercised alldue diligence to avoid committing the offence; (regulations 11(2A) and15(3) provide a similar defence in connection with serious failures tocomply with any provision of the workplace fire precautions legislationand commission of an offence of breaching any requirement imposed by anenforcement notice, respectively);

(vii) section 26 applies the Magistrates Courts Act 1980 to appealproceedings under regulation 14;

(viii) section 27 enables a person (including a fire authority), whois aggrieved by an order made by a magistrates court on determining acomplaint under the Fire Regulations, to appeal to the Crown Court;

(ix) among other things, section 27A generally restricts the provisionsof the Fire Regulations from conferring a right of action in any civilproceedings in respect of any contravention of a provision of the FireRegulations;

(x) among other things, section 30 disapplies (for England and Wales)any provision of a local Act from a workplace to which the Fire Regulationsapply in so far as that provision relates to any matter about which provisionis made in the Regulations;

(xi) the purpose of section 32 is to resolve any possible conflict whichmay arise between the requirements of a local Act and those of the FireRegulations in favour of the latter;

(xii) among other things, section 38, which relates to the service ofdocuments, enables an enforcement notice to be served on a person eitherby delivering it to him or by leaving it at his proper address or by sendingit by post; and

(xiii) under section 43, as modified by paragraph (3), the interpretationof the 1971 Act shall have effect only for the purposes of the sectionsof that Act applied by this regulation.

118. Regulation 14 of the 1999 Fire Regulations amends regulation17(4) of the 1997 Fire Regulations as a consequence of regulation5(c)(i) of the 1999 Fire Regulations (deletion of the exceptionrelating to fire certificates see paragraph 21 above). Accordingly,a fire certificate issued under section 1 of the Fire Precautions Act inrespect of premises covered by the Fire Regulations does not haveeffect to the extent that it would require a person to contravene any provisionof the workplace fire precautions legislation. Such premises are factories,offices, shops, railway premises, and the larger hotels and boarding housesthat are workplaces where a fire certificate is in force or for which anapplication for a fire certificate is pending under the 1971 Act.

119. Regulation 17(4) had already, in effect, disapplied theterms of a fire certificate relating to premises with a certificate issuedunder the Factories Act 1961 or the Offices, Shops and Railway PremisesAct 1963 to the extent that they would require a person to contravene anyprovision of the workplace fire precautions legislation. Now, under theregulation, as amended, the intention is, as before, to avoid placing aperson in a position whereby the terms of two pieces of fire precautionslegislation may conflict. The regulation effectively resolves any possibleconflict which may arise in favour of the regulatory requirements.

120. An employers risk assessment may draw attention to some fire safetyissue which suggests amendment being made to the existing fire certificate.In such cases, under regulation 17(4), as amended, fire authoritiesshould note that they may amend the certificate to the extent necessaryto prevent the certificate requiring a contravention of the workplace fireprecautions legislation, not replace it. However, this provision does notprevent fire authorities from, for example, replacing a certificate issuedunder the Factories Act 1961 or the Offices, Shops and Railway PremisesAct 1963 with one issued under section 1 of the 1971 Act if, in their applicationof that Act, they consider that the issue of such a certificate is justified.Replacement is a matter for them to decide upon separately in allthe circumstances. In every case, it is clearly desirable that the certificateshould reflect an agreed position.

121. Amending regulation 17(4) extends the scope of regulation 17(5).That regulation (which reflects the terms of section 8B of the 1971 Act)now provides for a fire authority to make a charge to recover certain costsof amending 1971 Act certificates as well as 1961 and 1963 Act certificates(other than the costs of inspecting the premises) in specified circumstances.However, a charge is only triggered where any amendment under regulation17(4), as amended, is made on the application of any personaffected by the certificate (usually the occupier of the premises)and the amendment is confined to those requirements of a kind whichmust be specified in a fire certificate under section 6(1) of the 1971Act, e.g. the fire-fighting equipment requirements of the Fire Regulations(and not those of a kind which may be imposed under section 6(2) of thatAct, e.g. the maintenance requirements). It is, of course, open to fireauthorities to waive the fee in any particular circumstances where thisseems appropriate, by not determining a fee in that case.

122. In view of the European Commissions textual approach toimplementation of the fire safety requirements of the Framework and WorkplaceDirectives upon which the Fire Regulations are based, it has been necessaryto provide implementing legislation in respect of safety certificated sportsgrounds and stands which imposes those requirements directly on theemployer rather than on the holder, or potential holder,of the safety certificate who may not be the empl