Out of the frying pan...

A strike by firefighters has been averted – for now. But if the talks break down and industrial action goes ahead, the cost of the resulting insurance claims could run into millions. So who, asks Penny Lewis, should pick up the bill?

Another winter of discontent could be looming. Unless the talks with the Fire Brigades Union produce a workable solution that can avert a future strike, there is likely to be considerable fire-fighting over the financial fallout from industrial action. With questionable emergency services available, it is inevitable that claims for personal injury, damage to property and industrial disruption will test legal minds. Who could be forced to pay compensation – the army, strikers, local authorities, the Government or trade unions?

The FBU estimates that national protests would cost £5.2m a day. The burden falls on John Prescott's department for those expenses, which cover extra army, police, ambulance and security services.

Insurers stand to be a major loser. Peter Court, an insurance solicitor at Plexus Law, notes: "During the last major firefighters' strike, in 1977, which lasted nine weeks, the cost of property losses caused by fire was more than £115m. Given inflation since then, the potential cost of a prolonged strike to the insurance industry is colossal." The crucial question is: what proportion of this is attributable to industrial action?

Before the strike threat, the Prime Minister announced that, while all options were being considered, it was unlikely that modern fire engines would be deployed by army personnel stepping into the fire-fighting vacuum. But is it fair to make the forces scapegoats? Versatile though it may be in responding to challenges such as foot-and-mouth and flooding, it's a tall order for the Ministry of Defence. A military spokesman says: "We are training a large number of people at short notice to learn how to use basic equipment essential to their latest role."

Should the Government insist that troops cross picket lines to retrieve local-authority fire-fighting equipment? The MoD insists: "Armed forces are apolitical and don't get involved in political disputes." It says that armed forces represent "an emergency capability" only and lack experience to operate the newer engines – a view echoed by Mr Prescott's office. The Fire Services Act 1947 imposes a duty on local fire authorities to "make provision for fire-fighting purposes", and secure "the services for their area of such a fire brigade and such equipment as may be necessary to meet efficiently all normal requirements". The Act details potentially life-saving measures such as providing support services with information on the characters of buildings and accessibility of water supplies, thus facilitating "reasonable steps to mitigate or prevent damage".

So, if industrial action interferes with an authority's exercise of its safety functions, what are the legal implications? Doubtless they would assert force majeure, a logical move in national strikes. Even in "normal" circumstances it is difficult to impose liability on emergency services. Graham Eklund QC was involved in the definitive series of consolidated appeals on this point, Capital and Counties plc vs Hampshire County Council and others (1997).

Notwithstanding expectations that rescue services respond to every 999 call, Lord Justice Stuart-Smith confirmed there is no obligation at common law to do so. It follows that there is no liability for inactivity. Recognising that rescue services respond to existing hazards, the Court of Appeal said it is only when they blunder, creating further damage, that they are liable. That principle applies equally to ambulance staff and police in the absence of a clear assumption of risk.

Referring to the contingency fire-fighting plans, Mr Eklund highlights "a potentially difficult situation for fire brigades. If they do not send firefighters to attend a fire, they will not be liable for damage that occurs or for the increased damage caused by their failure to attend. However, if they send people who increase the damage because of inexperience, they could find themselves liable for that increased damage."

Temporary firemen will be holding themselves out as firefighters and "will be judged by the standards of those who normally undertake such work". In consequence, Mr Eklund says, "it is no excuse to say they fought the fire to the best of their ability or in accordance with their training if these did not enable them to act as trained firefighters would have done." He concludes that there could be liability "for attending without proper equipment, if the absence of such equipment causes additional damage or fails to limit that which would have been suffered."

Other obvious parties whose actions could come under the legal microscope are strikers and their union. Demystifying this complex area Matthew Tom, employment specialist at Tarlo Lyons solicitors, explains: "Strikes are fundamental breaches of contract that can mean summary dismissal or withheld pay. But if a union endorses the strike, any dismissals for taking part in official action will normally be automatically unfair. The employer's most effective remedy is usually an injunction."

Barry Stanton, of the Thames Valley law firm Boyes Turner, urges employers to familiarise themselves with the main statutory provisions and codes governing industrial action. The most significant legislation is the Trade Union and Labour Relations (Consolidation) Act 1992. Section 220(1) defines lawful picketing. Being able to identify non-compliant action is important because this can lead to civil and criminal liabilities. Stanton stresses that "Employees can only picket their own place of work, ie their own fire station, but union officials may join lines elsewhere."

Tom adds that unions "usually commit 'industrial torts' by calling strike action, such as inducing breach of contract". However, "statutory immunity applies where procedurally correct approval and notification takes place". Professor Hugh Collins from the London School of Economics reinforces the view that for there to be a "lawful strike" union rules as to ballot procedure must be scrupulously followed." Were it to transpire that a ballot were flawed, the Government could seek injunctive relief against the strikers or union.

The threatened firefighters' strike has also generated fears about secondary action. The RMT and other industrial workers unions have questioned whether they can continue to work during strikes. This could amount to secondary action, which is where employees of another employer withhold their labour. If the firemen encourage this step then immunity can be lost leaving the strikers vulnerable to claims.

Tom says that "although it's hardly ever enforced, strikers who break their employment contracts knowing it will probably endanger life or cause injury will be committing criminal offences and could be imprisoned for up to three months".