Out-Law / Your Daily Need-To-Know

Don’t wait for Hackitt before making changes to fire safety approach

Out-Law Analysis | 06 Jun 2018 | 10:12 am | 4 min. read

ANALYSIS: Construction firms can use health and safety law as a template to overhaul their approach to fire safety now, without waiting for the government to implement the Hackitt Report.

There has been a huge change in health and safety culture in the over 40 years since the Health and Safety at Work etc Act came into force. When it comes to fire safety, there is a lot that the construction industry can take from that journey, and apply to building and fire safety, to make the cultural change required in response to the fire at Grenfell Tower, London on 14 June 2017.

In her interim report, Dame Hackitt drew a powerful comparison between Grenfell Tower and the 1988 Piper Alpha explosion, the 30th anniversary of which is being marked by a conference in Aberdeen this week. The loss of life and the determination that this must never happen again are obvious similarities.

But the Hackitt report, if implemented, would also make the regulatory response very similar.  Piper Alpha revolutionised health and safety offshore. New legislation seized upon the will to change, and made it clear that the whole contractual chain had a part to play. The concept of a 'safety case' was introduced, to set out a holistic approach to platform safety and emergency response. 

Grenfell Tower has inspired that same sense of moral obligation to do the right thing – to change the culture – in construction. But there has been a sense of paralysis while we waited to understand the direction of travel.

We have the final Hackitt report now, and a commitment from Government to get behind her agenda of systemic reform. Further details will be announced in the autumn. The recommendations are not a 'quick fix', and will not create the certainty that some had hoped for. Cultural change in construction is to be underpinned by much closer regulatory oversight, paid for by fee charging regimes. The legislation will be goal-setting, like health and safety law.  There will be a focus on roles and responsibilities for corporates and individuals. There will be a tougher sentencing regime when safety legislation is breached.

That is the backdrop. But the construction industry has been part of that change in health and safety culture. The goal-setting legislation and the Construction (Design and Management) Regulations (CDM) have driven that change. Tools have been developed to achieve compliance.  What Hackitt is telling the industry is that the same focus must now be applied to fire safety. Industry can use many of the same tools to start that process now.

The first of those is leadership, a key theme from Hackitt. A change in culture needs to be driven from the top. So there is a real chance now to reflect on what we want that culture to be, and how that might be reflected in the work that we do.

Our experience of working with boards on safety culture tells us that the prominence of fire safety at board level is key to setting the culture. A really good way to champion what you stand for is to have a named director with responsibility for fire safety, who can act as a figurehead. Some of our clients have reflected that their boards have not had the correct information to allow them to drive the right health and safety culture, so they have reviewed the metrics they are measuring and reporting to the board, and how they benchmark performance. A non-executive director can act as a really useful scrutineer to ensure that processes to manage fire safety are robust and fit for purpose, and that fire safety is really integrated into wider decision-making processes.

Leadership alone, however, will not change culture: the workforce and supply chain also have roles to play. We know from experience in health and safety that engaging with the workforce on why this is important, the board’s expectations and how they can contribute makes a real difference. Empower them by inviting views on what needs to change, and make them your eyes and ears. Many organisations have behavioural safety programmes to address and improve health and safety culture. Those same techniques can be applied to fire safety to create a culture which encourages workers to speak up and stop work when they see things which could compromise fire safety.

Making this work requires competent people. Dame Hackitt expects the industry, and its professional bodies, to take the lead on this. In the meantime, there is a gap. The regulators want to know how organisations can demonstrate competence for the projects they are working on now. Keeping on top of training records and competence portfolios is essential across the whole workforce, including the professional team.

In her interim report, Hackitt highlighted a particular problem with fire risk assessors for occupied buildings. That is not a new problem, but we can expect to see fire and rescue authorities looking much more closely at this.

When assessing the competence of the supply chain, CDM has driven significant change. The system of procurement questionnaires, third party verifiers and lists of approved contractors are a very efficient way to manage the process because they avoid duplication of effort. They play an important role.

However, third party schemes do have limitations. We frequently see organisations falling down on this during HSE investigations. Competence in health and safety is a two stage test and industry schemes can only ever address stage 1. Stage 2 is competence for each particular project. It would be encouraging to see a focus on this as fire safety competence requirements are standardised. For large-scale projects that last for many years, an industry approach to periodic review of competence would also be welcome.

One final area where firms can start work now is on the 'golden thread' of information, or 'digital record'. Hackitt's immediate focus is on higher risk residential buildings, but the application is clearly much wider. She recommends that these requirements apply retrospectively to existing buildings. A lot of the information will already be in the health and safety files being created for buildings. There is an opportunity to expand them to include the additional information identified in the Hackitt report. That will preserve the records and reduce the work to be done later.

Katherine Metcalfe is a health and safety and fire safety law expert at Pinsent Masons, the law firm behind Out-Law.com.