Asbestos, sentencing guidelines and why compliance is crucial

Although the use of asbestos containing materials (ACMs) has been banned for many years, such was its widespread use well into the 1990s that the risks associated with exposure to asbestos are set to continue for many years to come. Mark Quigley, Partner and Head of Regulatory at Sintons LLP, a UK based law firm, explores the implication of this for the industry, including the legal sanctions that could be imposed. With the numbers of claims and recorded deaths associated with asbestos exposure continuing to rise – with some analysts predicting claims may not peak until 2020 – the human and financial costs remain significant. Strict regulations now govern the control of asbestos and duties are imposed on employers, the self-employed as well owners and occupiers of certain buildings and premises, in an effort to minimise the risks associated with exposure. Breach of these regulations constitutes a criminal offence and is covered by new sentencing guidelines, which came into force on 1 February 2016. While these new guidelines apply to all cases coming before the courts from that date, they will apply to any offences committed before that date. The new guidelines, which are intended to “ensure a consistent, fair and proportionate approach” to sentencing organisations or individuals, provide that fines are based on a company’s turnover rather than profit. In determining the level of fine, there are five categories of organisation specified in the guidelines – these range from those businesses where turnover is under £2 million, right up to the largest concerns where turnover is well in excess of £50 million. The courts will look at the degree and likelihood of harm being caused as a consequence of breaching regulations intended to protect people from exposure to asbestos. They will also assess the level of culpability which gave rise to the offence being committed. The court will also consider whether there are any aggravating and mitigating factors in the case, including whether there are previous offences and whether actions took place knowingly or inadvertently. Due regard will also be given to the level of co-operation by the organisation during the investigation. The guidelines are clear in their instruction to the judiciary; the fine must be sufficiently substantial to have a real economic impact, which will remind both management and shareholders of the need to comply with health and safety legislation. In cases involving individuals, the guidance requires that the fine must reflect the seriousness of the offence and reflect the extent to which the offender fell below the required standard. Fines should meet the objectives of punishment, deterrence and the removal of gain as a result of the offence taking place. The intention behind these guidelines is clear; both organisations and individuals which fail to ensure that their health and safety procedures are robust and who commit an offence are likely to suffer both reputational and financial harm when they come before the courts.

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