Employers Could Face Risk of Criminal Proceedings during the Firefighters’ Strike

Contractors and businesses are being warned to heed the recent HSE advice on coping with the firefighters' strike. Failure to respond could lead to an increased risk of criminal proceedings both against the companies and individuals in management, according to law firm Nabarro Nathanson.

Ray Clarke of Nabarro Nathanson explains: "There is a clear duty on management to assess the increased risks with reduced fire service cover, particularly in regard to rescue, and implement appropriate measures accordingly. For managers on construction sites, the Health and Safety plan should be reviewed and supplementary arrangements put in hand without delay."

Particular activities that should be considered are those in deep excavations, working at height with safety harnesses, confined spaces and unoccupied buildings; or where specialised rescue may be required.

If something unfortunate should occur, then there will be a need to fully demonstrate to the HSE that the additional risks were considered and appropriate measures implemented if criminal sanctions are to be avoided. During the strike period these may include, in addition to reviewing the risks, additional briefings of employees and managers, further training, enhanced security and the tighter supervision of site working. It may be appropriate in certain circumstances to reschedule tasks where the increased risk from the absence of fire cover is unacceptable.

This obviously has contractual implications and measures should be agreed with clients and subcontractors, if time allows.

For those operating major hazard sites (COMAH), the HSE recognises that risk can be actually increased by implementing shutting-down processes on these complex sites and, as a consequence, scheduled maintenance shutdowns might need to be postponed. In recognising the reduction of fire service cover, site operators need to urgently consider the risks and provide supplementary measures to prevent major accidents and minimise their consequences should they occur. Operators should, if appropriate, also liaise with the local authorities who have the responsibility for preparing the off-site emergency plan for top tier COMAH sites.

In addition to the health and safety implications outlined above, Nabarro Nathanson is also warning employers that the dispute may well give rise to industrial relations and employment law problems for industry generally.

Keith Pugh, head of Nabarro Nathanson's employment practice in Sheffield, explains: "As the HSE has made clear, employees should be involved in developing safe systems and places of work and if they have concerns about safety they should bring them to the attention of their employer. The HSE expects there to be adequate consultation by employers in devising safe systems at work."

Addressing health and safety concerns will put employers in the best possible situation to deal with any industrial relations or employment problems. In particular, the Employment Rights Act 1996 provides that it is unlawful to subject an employee to a detriment and is automatically unfair to dismiss an employee for leaving or failing to return to a place of work which the employee reasonably believes to be in circumstances of imminent and serious danger. Employers who have not properly addressed the potential health and safety implications of the firefighters' dispute and have not consulted or communicated with their employees as to those issues may find themselves in a potentially difficult situation if employees leave or refuse to return to their place of work because they claim that the firefighters' dispute gave rise to serious and imminent danger.
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