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Severe penalties for asbestos offences

30 March 2012

Statutory obligations have been in place for some time now, the most recent being The Control of Asbestos Regulations 2006.

They impose a duty on all ‘duty holders’ (eg owners of the non-domestic property, landlords, tenants, licensees and, potentially, managing agents) to manage asbestos risk in non-domestic premises.

Risks from asbestos

To be able to manage the risks from asbestos in non-domestic premises, the duty holder is required to carry out a suitable and sufficient assessment to determine whether asbestos or asbestos-containing material is likely to be present in the premises. Where the material is likely to be present, a management plan must be prepared. The plan must determine the level of risk, identify which areas of the premises are affected and identify the measures to be taken for managing the risk.

It is not necessarily safe to assume that, once this exercise has been done, the report and management plan can simply be filed and forgotten about. The penalties that the Health & Safety Executive (HSE) can impose for failure to deal with asbestos properly are severe. In 1999, Brintons Limited was fined £100,000 plus costs for failing to prevent its employees from being exposed to asbestos – despite the company having an otherwise exemplary health and safety record and having taken prompt action to deal with the breach.

Marks and Spencer fined

In September last year, Marks and Spencer plc was fined £1,000,000 for health and safety offences relating to asbestos removal in two of its stores. While the company had produced its own guidance on how asbestos should be removed inside its stores, the court heard that this was not followed appropriately by contractors during a major refurbishment.

HSE alleged that Marks and Spencer plc failed to ensure that work at its Reading store complied with the appropriate minimum standards set out in legislation and approved codes of practice. They did not allocate sufficient time and space for the removal of asbestos-containing materials at the store. The contractors had to work overnight in enclosures on the shop floor, with the aim of completing small areas of asbestos removal before the shop opened to the public each day. Even though the company had employed reputable contractors to carry out the refurbishment and asbestos removal works, they were not able to escape liability and were heavily fined.

Commenting on the case, the HSE pointed out that the outcome of the case should act as a wake-up call to any organisation carrying out major refurbishment works. Any refurbishment programmes involving asbestos-containing materials must be properly resourced, both in terms of time and money – no matter what.  Where this is not done, the HSE will not hesitate to take robust enforcement action.

Work-related deaths

It is now illegal to use any form of asbestos in the construction or refurbishment of any buildings. However, asbestos was commonly used in construction in the past, and much of what was used is still in place. It constitutes a significant health risk to all those involved in building, renovation or maintenance work. Asbestos is the biggest single cause of work-related deaths in the UK, with an estimated 4,000 people dying every year. Annual numbers of deaths are predicted to go on rising into the next decade.

These predictions have triggered a crisis in the asbestos insurance global market and regulators are ever more concerned to ensure that the risk from asbestos is minimised – ignore it at your peril.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Nick Southwell BA (Hons)
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Nick Southwell, litigator at Willans LLP
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