23 January 2015
Company and director each fined £6,000
The company
V&S Carpenters and Builders Limited (V&S) were fined a total of £6,000 by the Royal Court on 5 December 2014 after pleading guilty to offences under the Health and Safety at Work (Jersey) Law 1989 (HSW Law), and the Asbestos (Licensing) (Jersey) Regulations 2008 (Asbestos Regulations).
Costs of £2,500 were also imposed.
The director
Of particular note was the court’s decision to also fine Mr Vince Wilson, a director of V&S, a total of £6,000 for breaching Article 23(1) of the health and safety at work law, as it was accepted that the offences committed by the company were done so with the consent or connivance of, or were attributable to, the neglect of Mr Wilson in his role as company director.
This case demonstrates the need for all directors and senior managers to understand and acknowledge the extent of their responsibilities under the health and safety at work law, as they may be brought to public account if it can be shown that they could reasonably have taken steps to prevent an offence being committed by the company.
About the incident
V&S, a small company with two directors and four employees, was contracted to carry out the refurbishment of a property in St Helier.
The scope of the work included:
- the updating of the hot water and central heating systems
- removal of old ceilings and partitions
- general internal and external re-decoration
Nine months into the project, Mr Wilson, on a Sunday, removed an old beam casing from one of the bedrooms.
He left all the resulting debris in the front garden of the property before arranging for it to be collected for disposal 17 days later.
Following concerns expressed to the Health and Safety Inspectorate (HSI) regarding the nature of the material, a sample of the beam casing was analysed and identified to be asbestos insulation board (AIB).
The subsequent investigation conducted by the HSI identified that Mr Wilson had not given any consideration to the risk of asbestos-containing materials (ACMs) being present in the property prior to starting the refurbishment project, nor made any arrangements to make sure that an appropriate refurbishment / demolition asbestos survey for the premises had been carried out.
This resulted in Mr Wilson removing the AIB without fully realising what the material was, or the consequences of doing so.
In addition to his own exposure to significant levels of airborne asbestos fibre as a result of his actions, Mr Wilson also potentially exposed employees and other sub-contractors working in the property to asbestos fibre.
Despite the room being cleaned after the AIB had been removed and a new plasterboard cladding installed to the beam (carried out by an employee during the week after the AIB beam casing had been removed), sampling of debris taken from the room 17 days later identified the presence of asbestos fibres.
The prosecution
In this instance, no consideration was given to the possibility of ACMs being present in the property at any stage, despite the extensive nature of the refurbishment.
As a result, AIB was removed in a manner which undoubtedly exposed people to airborne asbestos fibre, and in breach of the asbestos regulations, as the company didn't hold a licence to work with such material.
The company was therefore prosecuted for failing to ensure the health and safety of employees, and people other than direct employees (including sub-contractors working in the property), as well as a breach of the Asbestos Regulations.
Decision to fine the company's director
What makes this prosecution particularly stand out is the court's decision to also fine the company director, Mr Wilson, for similar offences under Article 23 of the health and safety at work law.
This article states that where an offence is committed by a body corporate, ie the company in this case, and it is committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or other similar officer, that person as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.
In broad terms, this means that where it can be shown that a body corporate has committed an offence under the HSW Law, and a director or other senior officer could reasonably have taken steps to avoid the offence within their role, responsibilities and scope of functions; or where the individual was personally responsible for matters relating to the offence (eg had personally instructed, sanctioned or encouraged activities which significantly contributed to the offence), and / or failed to heed previous advice / warnings, consideration will be given to the obligations imposed by article 23 as part of the investigation.
In this case Mr Wilson, as the employer, held ultimate responsibility for ensuring the well-recognised risks of exposure to asbestos fibre during construction work were properly managed and controlled. This he failed to do to any extent.
The situation was exacerbated as, despite his senior position, and having received asbestos awareness training in the past, Mr Wilson personally undertook the work which resulted in the removal of the AIB.
When imposing the fines, the court did acknowledge the small size of the limited company and treated the company and Mr Wilson as indivisible when considering the total fines imposed.
Controlling asbestos exposure
Asbestos is a class one carcinogen, and the single greatest cause of work-related deaths in the UK.
Nearly three times as many people in the UK die every year from an asbestos-related disease than are killed in road accidents.
The burden of disease typically suffered by workers in heavy industry and shipyards has been inherited by a new generation of workers in other trades, due to the extensive use of ACMs as a building material, both in the UK and Jersey, from the 1950s through to the mid 1980s.
Maintenance workers such as carpenters, electricians, plumbers, heating engineers and cable layers are now those predominantly presenting with asbestos-related diseases due to exposures to ACMS in their normal day-to-day work.
Asbestos fibres pose no threat to health when contained in a material which is intact and undamaged. To cause harm, the fibres must become airborne and be inhaled.
The health and safety at work law places general duties on those involved with work activities to ensure that, so far as is reasonably practicable, persons are not exposed to risks to their health or safety.
The Management of Exposure to Asbestos in Workplace Buildings and Structures: Approved Code of Practice (Asbestos ACoP) sets out practical guidance for all those with duties under the health and safety at work law, and illustrates the minimum standards required to control the risk of asbestos exposures, including those involved in construction activities.
Before undertaking any construction work, contractors should ascertain from the person having responsibility for the premises whether there are any ACMs in the building.
Where this information is not forthcoming, no work should be carried out until an appropriate demolition / refurbishment asbestos survey is undertaken.
The general refurbishment of domestic properties is particularly high risk for inadvertently encountering ACMs as these premises are unlikely to have been subject to a basic asbestos survey, unlike commercial/ workplace buildings which attract specific requirements in this respect. Further guidance is available in part 2 of the asbestos ACoP.
Due to the nature and friability of asbestos insulation, AIB and asbestos coatings, the asbestos regulations restrict work with such materials to specialist contractors, who are licensed by the minister for Social Security to carry out such high risk work under carefully controlled conditions.
Download Asbestos Approved Code of Practice (size 1350kb)
Asbestos licensing regulations
gov.je