Asbestos still lurks in many old or dilapidated buildings and employers who fail to protect their staff against exposure can expect severe punishment. In one case, a demolition subcontractor was hit hard in the pocket after its workmen were exposed to the substance during a school refurbishment project.
The school was built at a time when asbestos was routinely used in construction. Before the project began, an expert report revealed the presence of asbestos in various parts of the building and steps were taken to remove it safely. However, during demolition works, one of the subcontractor’s employees found a large clump of asbestos in the void above a suspended ceiling.
The discovery prompted the immediate cessation of work on the site and another survey, by a different surveyor, was commissioned which showed the widespread presence of asbestos sprayed on ceilings throughout the school, and that parts of the building that had been demolished had contained asbestos.
In those circumstances, the subcontractor was prosecuted and convicted of failing to comply with its duty under Section 2(1) of the Health and Safety at Work etc. Act 1974 to ensure the health, safety and welfare of its employees. The subcontractor was fined £400,000 on the basis that, had it obtained a copy of the original expert report and studied it carefully, it would have realised that it was inadequate and that a more thorough survey was required before the works could safely be started.
In dismissing the subcontractor’s challenge to the conviction, the Court of Appeal rejected arguments that the jury’s verdicts were inconsistent, in that it had been acquitted of breaching the duty it owed to non-employees. The different verdicts were somewhat surprising, but they were logically explicable.
The subcontractor argued that it had relied on assurances from the main site contractor, a large and reputable company, that the site was safe. However, in finding that the subcontractor’s culpability was high, the Court noted that the evidence revealed a serious and systemic failure to obtain, review and act upon relevant asbestos reports. The failings reflected a lax approach on the part of senior managers to their responsibilities over a substantial period.
In reducing the fine to £190,000, however, the Court found that the risk of the subcontractor’s employees having suffered actual harm was extremely small. An expert report showed that, if 100,000 people were exposed to asbestos to a similar extent to the subcontractor’s employees, about 90 deaths would result. By comparison, the risk of dying from smoking cigarettes is roughly one in five. The subcontractor’s appeal against a £175,000 legal costs order, however, failed.
