In the recent case of R v SQUIBB GROUP LTD (2019), the Court considered a company’s conviction under the Health and Safety at Work etc. Act 1974 s.2(1). The company was found to have breached its duty towards it employees by failing to do all that was reasonably practicable to protect them from exposure to asbestos.
Why was the company convicted?
The company had been involved, as a contractor, in the refurbishment of a school that required demolition work. Part of the demolition work was carried out in April 2012 during the school’s Easter holidays and the work carried on in July. The day after the work started again in July, one of the company’s employees was inspecting an area above a suspended ceiling and discovered what he thought was asbestos-containing materials. A new asbestos survey was done which showed widespread asbestos sprayed on ceilings and confirmed that parts of the school that had already been demolished contained asbestos. As a result both employees of the company and others involved in the school’s refurbishment had been exposed to a risk of inhaling asbestos dust and fibres. This risk puts them at risk of developing an asbestos-related disease.
The charges made
The company was charged on count 1 under s.2(1) for failing to comply with its duty to ensure, so far as reasonably practicable, the health, safety and welfare of its employees, and on count 2 under s.3(1) for failing to conduct its undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in its employment who might be affected were not exposed to risks to their health and safety.
The company was convicted by a jury of the offence under count 1 of breach of its duty towards its own employees, but acquitted of the offence under count 2 of breach of its duty to others. The company was fined £400,000.
The company appealed against the conviction and the sentence. In terms of the conviction, they argued that the verdicts on the two counts were inconsistent and if a not-guilty verdict was found in respect of one, it should be for both. They also argued that the fine was excessive and had been based on categorising the risk in a higher category than was justified on the evidence.
On appeal it was held that the jury had been entitled to find that the employees had been exposed to much higher levels of asbestos than any of the other people on site. Evidence had been produced that showed the company had managed the works in a way which reduced the risks to others.
In terms of sentencing, the court had been required to follow the Definitive Guideline for Health and Safety Offences issued by the Sentencing Council. The court had to consider the offending company’s culpability and the risk of harm, and assess which category the offence fell into. The judge had assessed the culpability as high and, given that he had heard all the evidence at trial, it was not justifiable to change his assessment. He had then assessed the risk of harm as medium but it was held that there was no proper basis for this conclusion. The judge had given no reason for disagreeing with the company’s expert’s evidence of risk to its employees of developing an asbestos-related disease as a result of their likely level of exposure. It was held that he had been wrong to do so. Instead it was held that the offence fell in harm category 3, for which the starting point for an offence involving high culpability committed by a medium-sized organisation was £210,000. So whilst the appeal against the conviction was dismissed, the appeal against the sentence was allowed and the fine was reduced. Making a similar adjustment from the starting point as the judge had for mitigating factors, the appropriate fine was £190,000.
It is encouraging that convictions for such breaches are regularly being made in relation to asbestos exposure. However, we are concerned to learn of so many instances of workers and members of the public alike being exposed to asbestos to this day and wonder whether the level of fines is sufficient to encourage changes. The incidence of the asbestos related cancer, mesothelioma, is expected to peak around 2020. However, if exposure continues, as in this case, people will still be at risk of developing the fatal cancer far into the future.
If you require assistance in pursuing an asbestos compensation claim for mesothelioma or other asbestos disease then please contact us today on our freephone number 0800 038 6767. Alternatively, head over to the ‘Contact Us’ page, complete the form and we will be in touch.