Since the introduction of the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines ("Guidelines"), which came into force on 1 February 2016, fines for breaches of health and safety regulations have increased substantially.
The new Guidelines aim to bring more consistency to sentencing in the event of health and safety breaches, and to ensure that "the fine must be sufficiently substantial to have real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation."
As the Guidelines set out fines for different types of breach according to the annual turnover of the company, large companies (with a turnover of over £50 million), could face fines of over £4 million. It is therefore imperative that organisations achieve high standards of compliance with health and safety legislation.
One sector that has experienced an increase in fines for serious health and safety breaches is construction. Statistics published by the Health and Safety Executive ("HSE") reveal that construction remains a high-risk industry and accounts for a high percentage of fatal and major injuries, together with work-related illnesses. For example, since the introduction of the Guidelines a number of large companies and contractors have been subject to substantial fines – ranging between £200,000 and £750,000 – for failing to prevent exposure to asbestos. Exposure to asbestos fibres can cause a wide range of serious and sometimes fatal diseases including mesothelioma, asbestos-related lung cancer and asbestosis. Therefore, it is unsurprising that the HSE has taken a tough stance for failing to prevent exposure to asbestos. For example, at the start of 2017 a demolition contractor was sentenced to 24 weeks imprisonment for breaching Section 16 of the Control of Asbestos Regulations 2012.
As large amounts of asbestos-containing materials ("ACMs") were used for a wide range of construction purposes in buildings until 1999, when all use of asbestos was banned, the risks of asbestos-related illnesses within the construction industry remain high. According to figures published by HSE in 2015 there were over 2,542 deaths from mesothelioma (a form of asbestos related lung cancer).
Companies and contractors must therefore adopt the high standards of control required where there is the potential to expose workers to asbestos. Failure to do so will result in large fines imposed under the Health and Safety at Work Act 1974 ("HSWA 1974"). For example, in July 2017, Balfour Betty Regional Construction Limited was fined £500,000 and ordered to pay costs of £30,000 after pleading guilty for breaching section 2(1) and section 3(1) of the HSWA 1974.
Asbestos is subject to two sets of regulations – Control of Asbestos Regulations 2012 ("CAR"), and the Registration, Evaluation, Authorisation and Restriction of Chemicals Regulations) 2007 ("REACH"). CAR covers work with asbestos and licencing of asbestos removal, and REACH prohibits the supply and importation of asbestos. Companies and contractors working on non-domestic premises are therefore under a duty to assess and manage the risks from the presence of asbestos, which includes preparing a written plan of the actions and measures necessary to manage the risk. To help comply with these legal requirements, dutyholders should appoint an individual within their organisation who will be responsible for the assessment and management of asbestos.
As the Construction (Design and Management) Regulations 2015 also requires clients to carry out site-specific asbestos surveys in advance of any construction work, HSE strongly recommends appointing an accredited or certified surveyor with the required level of knowledge of both asbestos products and building construction methods.
Clients in the construction industry should therefore be aware of the potential risks surrounding asbestos if they are to avoid the substantial fines seen in recent months for failing to protect the health and safety of their employees and third parties.