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05/02/2013 - Health and safety: still mad?

The BBC’s "Inside Out” programme, screened on 4 February 2013, revealed how the then Chairman of Marks & Spencer plc had been warned by a contractor in 1998 that the management of asbestos during refurbishment of its flagship Marble Arch store put the safety of construction workers, M&S staff and shoppers at risk. However, 7 years later, the retailer failed to safeguard the health or safety of precisely the same sorts of people against an identical risk of exposure to asbestos fibres when refurbishing its Reading store.

The result was that a Health & Safety Executive prosecution was brought against M&S and others. The court heard evidence, referred to in the BBC’s programme, of how dust fell from a potentially contaminated ceiling void while the store was open, onto a worker filling shelves with sandwiches and customers in the area.

Whatever the jury made of that particular piece of evidence will never be known, however the company was convicted at the end of the trial and fined £1 million for the part it played in the Reading store refurbishment. His Honour Judge Harvey-Clark QC found that M&S intended to keep its trading profit as high as reasonably possible, and allocated insufficient time and space to potentially dangerous asbestos work. In response to concerns raised by workers about the work, the company turned a blind eye.

What is even more interesting, however, is M&S’s response to the BBC. Mr Steve Rowe, one of Marks & Spencer plc’s current board members, expressed regret for the way the company managed work at Reading.

He went on to say that the company’s subsequent investigations of the Marble Arch complaint found "no case whatsoever that to say that any member of staff or any member of the public was put at risk”. However, does that not completely miss the point?

The government has reported in February this year about its progress towards its aim of simplification of health and safety law in the UK, and the guidance about it. That is, commendably, on track. What is, however, clear from the Ministers’ own reports, and those commissioned by the various government departments involved of independent parties, is that the basic principle of the law, that prevention is better than cure, is spot on.

It is simply no good to shut the door of the stable after the horse, carcinogenic dust spewing from its cart, has made a dash for it. What is required is that work is planned and executed so that the possibility of exposure of people (and ideally our equine friends) to any given hazard are reduced to an absolute minimum, if not eliminated altogether.

That is not something peculiar to asbestos work, but is a principle which applies to those who create any risk from their work activities. How one then goes about averting any given possibility of danger is, by and large, up to the employer, but the steps taken need to be commensurate with the level of risk created.

Whatever the outcome of M&S’s subsequent investigations, it is clear that neither the jury nor the judge were satisfied that there was no risk from its work at Reading. Quite the contrary: the judge found that construction workers, shop staff and members of the public had a "right to be anxious as to whether they breathed in asbestos fibre.”

The madness in this health and safety story is that such a large, well-resourced and respected company was being told about a significant problem, but still failed to do enough about it.

Michael Veal is the head of the Regulation and Business Crime team at Lester Aldridge LLP. He can be contacted on (01202) 786340 or Michael.Veal@LA-law.com.

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