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Retailer does not apologise after £1m for asbestos risk fine

On September the 27th Marks & Spencer expressed its disappointment at being fined £1 million for exposing its staff and customers to asbestos at its store in Broad Street, Reading.

The Bournemouth Crown Court handed down the sentence to the retailer and two of its contractors. The charges stemmed from refurbishment work performed in 2006 and 2007 at the Reading store as well as a store located in Commercial Road, Bournemouth.

In addition to the fine the company was ordered to pay court costs of £600,000, since it was found guilty of breaching sections 2(1) and 3(1) of the HSWA 1974. The company was charged with failing to protect its staff and customers at the Reading store from the risk of exposure to asbestos between the 24th April and the 13th November 2006. M&S was acquitted of four other charges relating to conditions at its Bournemouth store, as well as a store in Plymouth.

The three-month trial concluded in July at Winchester Crown Court. It heard that the company did not allocate sufficient time and space for removing asbestos from its store in Reading. The contractors working on the site were to work overnight to remove small pockets of asbestos before the shop opened to the public each day.

The HSE put forward that M&S did not ensure that the work was performed according to the required standards. M&S did provide own guidance on how asbestos should be removed inside its stores. Contractors did not follow these procedures carefully during the store refurbishment.

The contractor at the Reading Store, Styles & Wood Ltd, admitted that it had used a method of asbestos removal that did not seal the area properly, resulting in risk to contractors working on site. The contractor was fined £100,000 plus costs of £40,000, after entering a guilty plea to contravening sections 2(1) and 3(1) of the HSWA 1974.

PA Realisations Ltd (formerly Pectel Ltd), another contractor, was found guilty of contravening reg.15 of the Control of Asbestos at Work Regulations 2002 by failing to reduce to a minimum the spread of asbestos to the Reading shop floor between the 5th of May and the 12th November 2006.

A witness called to testify at the hearing said that areas which had been cleaned by the company were re-contaminated when air moved through the void between the ceiling tiles and the floor above, as well as by the company’s shoddy work standards. The company, which had been based in Manchester, went into administration in December 2008 and is awaiting dissolution: it was fined £200.

Willmott Dixon Construction Ltd, of Hertfordshire, the principal contactor of the store, was fined £50,000, plus costs of £75,000 for breaches of sections 2(1) and 3(1) of the HSWA 1974 committed between the 5th and 28th of February 2007.

The court also heard that M&S also failed to plan, manage and monitor the removal of asbestos-containing materials appropriately. It did not take steps to prevent the possibility of asbestos being disturbed by its workers in areas that had not been surveyed extensively. Willmott Dixon Construction is applying to appeal its conviction.

When handing down the sentence, Judge Christopher Harvey Clark QC commented: “The response from Marks & Spencer was, in effect, to turn a blind eye to what was happening. . . it was already costing the company too much money.” He added: “There was systemic failure on behalf of M&S management, and there has been no hint of a proper full apology for what happened.”

M&S released its own statement, saying: “We are very disappointed with the result of this case, as we believe that we have always acted responsibly and with a ‘safety first’ attitude. The health and safety of our employees, customers and contractors is of the utmost importance to us. We hope to continue to work closely with the HSE in the future to ensure that strict regulations and safety standards relating to asbestos are maintained.”

Richard Boland, the regulator’s southern head of operations for construction, stated: “This outcome should act as a wake-up call that any refurbishment programmes involving asbestos-containing materials must be properly resourced, both in terms of time and money – no matter what. Large retailers and other organisations who carry out major refurbishment works must give contractors enough time and space within the store to carry out the works safely. Where this is not done, and construction workers and the public are put at risk, HSE will not hesitate in taking robust enforcement action.”

In 2010, Marks & Spencer plc earned before-tax profits of £714.3 million – representing an increase of approximately 13 per cent above the previous year. In its annual report for 2011, chief finance officer Alan Stewart stated that these figures were indicative partly of the company’s focus on “building an efficient business, with prudent operating cost management”.