In the High Court this week we saw the outcome of the long-running legal process relating to the deaths of two employees of East Sussex Fire and Rescue Service at an explosion at Marlie Farm in 2006. The court determined that the families, as well as a number of Firefighters injured at the same incident, are entitled to compensation from the employer, East Sussex Fire and Rescue Service.
I am sure all FBU members will be pleased that the families and the other injured Firefighters may now finally see some justice over this tragedy. All FBU members can be proud that you have helped to ensure this. Such legal cases are extremely costly and every single FBU member has contributed to this successful outcome. Without the support of a trade union, without the contributions of every single member, individual Firefighters would not be able to take on and challenge their employer in such cases.
The court made important rulings in two broad areas:
- It ruled that there were several serious failing by East Sussex Fire and Rescue Service which led to or contributed to the deaths and injuries.
- It also rejected the legal arguments presented by the employer, East Sussex Fire and Rescue Service, that Firefighters attending an emergency incident are not covered by normal Health and Safety law and that their employer does not owe them the normal 'duty of care' enjoyed by other workers.
It is important to note that the failings identified are the responsibility of the employer. In such difficult operational circumstances, Firefighters and managers at various levels face very difficult decisions and the situation changes rapidly. This factor was recognised by the judge. However, Fire and Rescue services should be planning in advance for the various types of emergency they may face. That sort of planning, including for Firefighter safety, should be at the heart of Integrated Risk Management Planning. In this regard there was a clear failing by ESFRS on several levels.
Legal arguments presented by East Sussex Fire and Rescue Service
East Sussex Fire and Rescue Service had argued that various Health and Safety provisions and regulations do not apply to Firefighters at an emergency incident and that if any failings by an employer were identified there could be no liability under common law due to a so-called 'fireground immunity.'
This is the first time, to our knowledge, that such an argument has been presented in relation to the Fire and Rescue Service. We are pleased that the judge clearly rejected it. We will now be examining this ruling closely as we believe it has wide-ranging implications for all Firefighters and for the Service.
Many in the Fire and Rescue Service will have been shocked at the stance taken by East Sussex Fire and Rescue Service in fighting against payment of compensation and in rejecting their responsibilities as an employer in relation to this tragedy. We often hear talk about the need to learn lessons from such tragedies. In this case, the lessons should have been learned before the incident by this employer. If they had been, it is clear that these deaths and injuries could have been avoided.
Will there be an appeal?
Details of compensation have not yet been determined because it is currently unclear whether East Sussex Fire and Rescue Service will appeal against the judgment. That is clearly a matter for them, although we are extremely confident in the evidence and legal arguments presented on behalf of the Firefighters and the families and of the soundness of the judgment. We have always found the evidence and argument presented by the employer to be weak and, in some, cases quite bizarre. We can only hope that, even at this late stage, the employer acknowledges its responsibility and does not seek to further prolong this painful process.
If the arguments used by East Sussex Fire and Rescue Service had been successful, they would have altered entirely the working arrangements for Firefighters attending emergency incidents. Their arguments were an attempt to absolve employers from the responsibility for ensuring adequate pre-planning; training; equipment; procedures; sufficient resources; and all the other factors which allow Firefighters to do their job safely, effectively and professionally. It is difficult to see how Firefighters could operate at emergency incidents knowing that, should anything go wrong, their employer would refuse to accept any responsibility and their families would be left without adequate compensation.
We will consider the legal and professional ramifications of this case and identify what steps need to be taken to further protect Firefighters and their families.
One thing is demonstrated absolutely clearly by the actions of the employer in this case. The only way to ensure Firefighters and their families are protected is by being organised together in our Union. Sadly, ESFRS, has demonstrated beyond doubt that we cannot rely on employers to protect the rights of Firefighters or their families in such circumstances.