Or, explaining articles 5(3) and 5(4) in another way – if a person or organisation has fire risk management obligations under the FSO (such as to maintain a fire alarm system), then those fire risk management obligations should be outlined in the contract or tenancy, usually held with the responsible person.
Watertight contract
The confusion usually arises when there is no written contract or tenancy; or when there is one, but it does not clearly outline the fire risk management responsibilities of the parties. In such cases,‘the extent’ of both the responsible person’s and the contracted professional’s obligations are not clear. It is here that the blame game usually starts. What has to be remembered at this point is that once an FSP starts working for a responsible person, for payment or otherwise, a contract is formed, whether it be verbal or written. Failing to outline one’s responsibilities under the FSO within that verbal or written contract leaves both parties at risk of enforcement action, including prosecution. Therefore, it is essential that FSPs ensure that
they protect themselves as much as possible from a contractual point of view, by clearly defining what the extent of their control is and what their obligations are. By failing to have appropriate contractual documentation, FSPs are opening themselves up to the possibility of liability under the FSO. I must stress that I am not suggesting that FSPs should shirk responsibility or look to blame others. The fire safety industry and fire services all share a common goal – keeping people safe. Therefore by having clear and coherent contractual documentation, there is an understanding between all parties involved
about what is required in order to achieve this common goal.
No contract dangers
It is worth noting that, in the absence of any contractual documentation or where there is ambiguity, the enforcement authority will simply put all breaches before the court, outline the parties with fire risk management responsibilities for the premises and let the jury decide who is culpable. In the past couple of years, we have
been working with an increasing number of different organisations with complex fire risk management responsibilities, to ensure that their terms and conditions, contracts, management agreements and retainers are thorough and effectively outline the extent of the responsible person’s and the FSP’s control and obligations, respectively. It has been quite alarming and surprising
to see just how few contracts and agreements deal with the FSO in detail, or at all. By having clear and comprehensive contractual documentation, FSPs are not only limiting their potential liability under the FSO, they are also creating transparency and ownership of their obligations with other responsible persons. This in turn will hopefully mean that there
is better cooperation and understanding in relation to what the requirements are under the FSO between the two parties. In such circumstances, it is prudent to be proactive rather than reactive and ensure that your contractual documentation is as watertight as it can be
Warren Spencer is managing director and fire safety solicitor at Blackhurst Budd Solicitors. For more information, view page 3
www.frmjournal.com JULY/AUGUST 2020
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