Employers Remain Confused About Duty of Care and the DDA

Stairway evacuation is often impossible - not just for people in wheelchairs, but also for people with walking difficulties, heart disease, epilepsy and so on. To add to these difficulties, the potent combination of an ageing population and the likely extension of our statutory retirement age will inevitably have an effect on the overall mobility of our workforce.

Architectural advances are having a real impact on emergency management procedures both in the UK and internationally. Vertical villages (the latest term for high rise buildings) are throwing up new challenges as they reach ever new heights.

The Petronas Towers in Kuala Lumpur hold 5,000 people in each tower, while the new London Bridge Tower, due for completion in four years' time, will soon be the tallest building in Europe.
The Disability Discrimination Act 1995 (DDA) makes it clear that employers must provide adequate access to all buildings.

We can no long deny an individual employment on the grounds that a building is unsafe or inaccessible. Normally, employers meet these provisions by means of a ramp from the exterior into the building. Once inside, elevators generally allow the peripatetic workforce to move around at will, and the employer is deemed to have met both his legislative and moral obligations.

But although the law protects the employment rights of those with mobility problems, it has very little to say about how to evacuate those same employees during an emergency situation, such as a fire.

Legislative Bite?
Although some have criticised it for its lack of teeth, the DDA was the first piece of legislation to address the rights of those with mobility problems in any comprehensive way. Unfortunately, it has had relatively little impact on improving the employment conditions for people with disabilities in the UK.

There are fundamental omissions in the legislation. For example, employees are instructed not to use the lifts during a fire, because they can act as natural chimneys and harbour dangerous concentrations of gases. Yet the DDA makes no requirements for employers to provide a means of escape for those unable to use the stairs during such emergencies.

The standard advice is to identify a 'place of safe refuge' on each floor, so that employees with mobility difficulties can remain where they are likely to come to the least harm. They are advised to remain there and await rescue when the fire service can safely enter the building.

Area of Safe Refuge
The Area of Safe Refuge, according to BS5588: part 8 is: "an area that is enclosed with a fire resisting construction (other than any part that is an external wall of a building) and served directly by a safe route to a storey exit, evacuation lift or final exit, thus constituting a temporary safe space for disabled people to await assistance for their evacuation".

In fact the document further states that "refuges are relatively safe waiting areas for short periods. They are not areas where disabled people should be left indefinitely until rescued by the fire brigade or until the fire is extinguished".

This has been endorsed by the Home Office Guidelines to fire authorities that the evacuation of all staff is the responsibility of the employer or occupier and not the fire service, many of whom have dropped the 'Rescue' adage from their title. In 2006 these responsibilities will extend to hotels, nursing homes and residential care homes, where in 2003 some 20 fires per week were recorded as a national statistic.

The general duty of care under the Health and Safety at Work Act 1974 will be extended under the Fire Precautions in the Work Place Act, and hotels, as well as tall office buildings, are no exception.

Clearly, this practice raises an assortment of moral issues, but also some more practical difficulties. Historically most European countries have depended on rescue services, such as the fire brigades, for rescue, however, this is not their primary responsibility and they cannot guarantee arrival within a specific time. The fire service has limited resources with which to attend a fire, or may be engaged elsewhere.

The responsibility must fall on the employer. There is also the issue of multi-tenancy occupier buildings, where it is not the landlord but the employer or employers who are responsible for the employees within the building.

Times are changing though. New amendments to the DDA came into force in October 2004 which strengthens the requirements placed upon employers. From October, it has been unlawful for businesses to treat disabled people less favourably than other people for any reason related to their disability.

Where a physical feature of a building makes it impossible or unreasonably difficult for disabled people, employers must take reasonable steps to remove or alter the feature or provide a reasonable alternative method of overcoming the problem.

Three separate European directives have also influenced building evacuation: Health and Safety CE Directive 89/391; Manual Handling CE Directive 90/269; and Equal Opportunities in Workplace CE Directive 2000/43. Inevitably, the members of the EU have adopted different approaches to the urgency with which they need to implement these directives. But the UK is considered to be well ahead of the game on these matters.

Duty of care
In an emergency situation, employers have a duty of care and are required to provide employees with adequate means of escape. This includes to provide adequate supplies of the necessary equipment to cope with any emergency; and to provide adequate training to use that equipment. Crucial, however, is the fact that these provisions must cater 'even for the minority interest'.

But what constitutes "adequate" "care" if you have a disability problem?

Adequate care is quite well defined by legislation. It can be determined by the answers to a series of simple questions. Is it foreseeable that there might be a fire? And is it foreseeable that there will be difficulties evacuating employees with mobility problems if an emergency arises? If the answer to these questions is 'yes', an employer must consider how he can best provide for the care of employees in this situation.

Why Wait to Evacuate?
"Unfortunately a fatalistic assumption still lingers: Too bad so many wheelchairs were left behind, but nothing could have been done to save them. In high rise disasters (such as the WTC) the thinking goes a wheelchair users only hope is to be carried to safety by firemen. That is why we're instructed to wait in areas of 'safe refuge' - usually stairwells - while non-disabled evacuees descend the stairs" (Viz Josie Byzek and Tim Gilmer Newmobility Magazine)

John Abruzzo, an evacuee who worked on the 69th floor of Tower 1 in WTC, recalls how on that tragic day many seemingly ordinary people did extraordinary deeds. "There was no debate on whether I would be brought down or not by these people. It was more or less a collective decision," says Abruzzo.

With the use of a special evacuation mobility device designed for the physically disabled, called the Evac+Chair Emergency Wheelchair, Abruzzo was able to make an escape to safety. It took an hour-and-a-half to get down 69 floors. Although it is designed for one person to guide it, three or four people handled the device while heading downstairs, rotating positions as necessary.

Risk assessment
Under the Health and Safety Directive, employers have a responsibility to carry out a risk assessment. Disabled people can move around a building and have access to various levels within that building, just as any other employee. Any risk assessment must take this into consideration as far as emergency is concerned.

Comprehensive risk analysis is essential to determine exactly who is at risk and where those risks will occur. Are there any floors which people with mobility problems will never have to go to? How many floors are there and how many exits per floor? What means of escape are available to both the able bodied and to those with mobility difficulties. The Manual Handling Directive has a direct impact on the issue of evacuation and should be factored into this assessment.

Tailoring the Solution
There are, of course, several methods and devices on the market to assist with building evacuation, such as fire proof lifts, ramps or escape chutes. But as well as requiring significant alterations to the fabric of the building (and thus incurring significant costs), methods such as escape chutes are often not ideal for evacuating employees with mobility difficulties. Evacuation chairs have been around since the late 1980's and are low budget, and easily fitted to new builds as well as older types of buildings, even those of historical importance.

Buildings vary so significantly in terms of size, structure, age and how they are used that each needs to be assessed independently if employers are to ensure that they have fulfilled their statutory and moral obligations. Just as each building presents unique problems, so the provision to each employer should reflect those individual needs. Site surveys can reveal the exact specification which each client requires.

Implementing the solution
An important part of the implementation of any solution is preparedness. In the Health Service, for example, more workers in the health service suffer back injuries than any other industry, due to the difficulties in moving and carrying patients. The employer needs to question what constitutes adequate care in terms of providing means of escape to other employees.

Does carrying a regular wheelchair down several flights of stairs really constitute adequate care? Imagine carrying a person downstairs, the weight of a wheelchair adds about 10% to the passenger's weight; it is a fairly heavy load needing four people. A single person is supposed to carry not more than 25kg.

Adequate training in how to use evacuation equipment is important and should not be difficult for an employer to provide. Training should take place in companies as part of the fire marshall and first aider programmes, and it is easy to combine equipment training with these roles. Fire marshalls should simply evacuate their floor or area as normal and transfer any wheelchair users from the area of safe refuge to follow the others out of the building.

The philosophy ...
The ultimate form of discrimination is to be left behind waiting to be rescued whilst one's able bodied colleagues can leave the building unaided.

By Barry Scholes Managing Director of Evac+Chair International Ltd
+44 (0)121-706-6744

info@evacchair.co.uk
www.evacchair.co.uk