Exposing employees and others to asbestos is increasingly leading to individuals and companies facing criminal proceedings, with some cases resulting in terms of imprisonment.
In Spring 2008, the HSE launched its “hidden killer” campaign. It made it clear at the time that the full force of the criminal law would be used against those who failed to comply with their legal duties in respect of asbestos. Since then there has been upwards of 30 prosecutions of companies and six prosecutions of individuals recorded by the HSE for asbestos related offences. The majority of prosecutions relate to either breaching the general duties under the Health and Safety at Work etc Act 1974 (HSWA) or the Control of Asbestos Regulations 2006 (Asbestos Regulations). A number of individuals have also been prosecuted for a breach of the requirement under s.7 HSWA to take reasonable care for other employees and people affected.
The Asbestos Regulations amalgamated three different sets of Regulations. They introduced a new regime for the management of asbestos, setting out a number of general requirements concerning the identification of asbestos, risk assessment and plans of work in respect of work involving asbestos, together with mandatory training. They also introduced a new licensing and notification of work regime. The requirements are quite prescriptive and provide a benchmark against which investigating authorities can assess the performance of an organisation involved with asbestos work.
Prosecution of companies
Fines for companies have generally ranged from £10,000 to £25,000 but there have been some significant fines, such as a combined fine of £100,000 imposed by a judge at the Old Bailey on Mansell Construction Services Ltd and Woodlands Plant Hire Ltd earlier this year. Fines in health and safety cases cannot of course be indemnified by insurance.
Mansell was prosecuted as a Principal Contractor under the Construction (Design and Management) Regulations 2007. Woodlands was prosecuted for various breaches of the Asbestos Regulations. The Court heard that during works to an occupied block of flats, asbestos insulation board was disturbed and released into the air. It was alleged that a previous survey identifying asbestos at the premises had not been acted upon by Mansell. Woodlands was not a licensed contractor.
Perhaps the highest profile case brought against a company to date for asbestos related offences is the ongoing prosecution of Marks & Spencer being heard at Winchester Crown Court. M&S has pleaded not guilty to allegations that it failed properly to plan works involving asbestos at a number of its stores across the South of England with the result that it is alleged that staff and customers may have been exposed. The Prosecution allege that M&S was more concerned about making stores unsightly than properly managing the works. The trial, which started in April, involving two other Defendants, is due to last 15 weeks.
Prosecution of individuals
In addition, a number of individuals have in recent times been punished by the criminal courts for failures relating to asbestos. In one a licensed asbestos surveyor was fined for undertaking a defective survey.
In two other cases in 2011 custodial offences have been imposed. In March 2011, a construction site manager from Barry pleaded guilty to a breach of s.7 HSWA and was sentenced to a two month suspended prison sentence as well as being ordered to undertake 150 hours of community service. The manager had been supervising refurbishment works. A full site survey for asbestos had been carried out but the Court was told that the manager had failed to check the warnings it gave and instead instructed a worker to manually demolish known asbestos containing fascia boards. The worker had only been provided with a hammer and chisel to break the board into fragments.
In the second case a property developer was sentenced to three custodial sentences, all suspended, including an eight month sentence for various breaches of the Asbestos Regulations including undertaking work likely to expose workers to asbestos and allowing unlicensed work to take place. The Court heard that the Defendant had failed to undertake any asbestos survey of the property, meaning that the presence of significant levels of asbestos wasn’t identified.
It is interesting that the three most recent cases involving individuals have included a surveyor, a property developer and a construction manager, illustrating that the authorities are prepared to prosecute individuals at any stage of asbestos work.
The recent spate of cases is a timely reminder to all those involved in the management of premises, in its widest sense, to consider the possibility of asbestos and the dangers that it poses.
Likewise, insurers need to be aware of the increasing trend for criminal prosecution where policies respond, as they will be called upon to fund defence representation. As evidenced by the M&S trial, despite the relatively prescriptive law, this is not an easy area and such trials can be very costly in the event that reputable companies like M&S want to fight cases to maintain their reputation.