In a recent prosecution brought by Lincoln County Council, the court determined that a fireplace installer could be prosecuted under the General Product Safety Regulations 2005 (GPSR) for supplying an unsafe product by virtue of its installation. This has serious implications for all tradespeople and installers, who can now be prosecuted under the GPSR, even if the product itself was perfectly sound.
Under section 2 of the GPSR, a 'producer' includes:
- the manufacturer of a product who is established in the EU
- a person established in the EU, holding himself out as the manufacturer, for example by selling private label products under his own brand ("own-branders")
- a person established in the EU who reconditions the product
- a person established in the EU who represents a manufacturer from outside the EU
- where there is no EU representative of the manufacturer, the importer into the EU
- other professionals in the supply chain who affect the safety of the product
"Other professionals in the supply chain" is not legally defined. And it was on this point, i.e. was the installer an "other professional" for the purposes of the GPSR, that the case made the ground-breaking ruling.
The Defendant supplied and fitted fireplaces for a living. His work included the removal of old stoves, plates and chimney liners and replacing them with new equipment including flue liners and canopies. The Defendant quoted the complainant for the removal of the current stove, plate and chimney liner and its replacement with a fire basket and fire back.
The old stove register plate and old chimney liner were removed by the Defendant and the chimney was then swept before the new basket and back were installed.
An independent engineer who inspected the installation found that the fittings had been installed incorrectly. The hood and flue liner were too small and did not comply with UK Building Regulations.
The local authority brought a summons alleging an offence under the GPSR. It argued that whilst the fireplace was being renovated, the Defendant installed a flue liner and a canopy in such a way to render them unsafe products. The Defence stated that the safety properties of the product were not affected by the Defendant's activities. Such an act must involve a physical alteration of the properties of the product, so that in normal and foreseeable conditions of use, the item created a risk which was not consistent with a high level of protection for the safety and health of relevant persons. It was also submitted that an installer only assumes responsibility for the safety of the product if they alter or interfere in any way with the item prior to sale to the consumer. It is accepted that a product can be rendered unsafe by the manner of its installation but only
in so far as it is altered or changed in any material fashion.
The Court's decision
The Court ruled that a "professional (other) person" as defined in section 2 of the GPSR could (and did, in this case) include an installer because the act of installing a product can affect its viability and safety. Crucially, this is the case even if the product itself is free from defects.
The Defendant ultimately won his case on the facts (the installation was deemed incomplete – he was performing regular tests and diagnostic checks during his works to rectify the problems with the chimney) and therefore escaped conviction. However, anyone who installs a product must be aware that this decision means they could be prosecuted under the GPSR for 'providing an unsafe product' by virtue of its installation. This should be taken seriously, as failure to comply with the GPSR can lead to fines and/or imprisonment. There
is also the risk of potential prosecution for installers under the Health and Safety at Work etc Act 1974 for failing to conduct their undertaking in such a way so as to ensure the heath and safety of non-employees (e.g. domestic clients, sub contractors or members of the public), which can also lead to significant fines and/ or imprisonment in accordance with the 2016
Health and Safety Sentencing Guidelines.
Installers may wish to seek specialist regulatory legal advice to assess the impact of such prosecutions, which may be on the increase in light of the recent focus on the effectiveness of UK building regulations and fire safety enforcement.
The Defendant was represented by Kizzy Augustin of Russell Cooke LLP who instructed Tanveer Qureshi of counsel.