The duty to manage asbestos, the rise in prosecutions and other emerging trends

Asbestos: Your Duty

On 15 January 2024, HSE launched its ‘Asbestos: Your Duty’ campaign to raise awareness of the dangers of asbestos and to improve understanding of what the legal duty to manage asbestos in buildings involves. This campaign ran alongside HSE’s ‘Asbestos and You’ campaign, which was launched in 2023 and which provides a quick guide to tradespeople about the personal risks from asbestos that still exist across the country today, as well as their legal responsibilities.

Photograph: iStock/D-Keine

The duty to manage asbestos applies to non-domestic premises and ‘common parts’ of multi-occupancy domestic premises, such as purpose-built flats. The duty to manage asbestos in non-domestic buildings is covered by Regulation 4 of the Control of Asbestos Regulations 2012 (CAR 2012). This duty is placed on the dutyholder, that being either (i) the person or organisation who has the responsibility for maintenance or repair of the non-domestic premises by virtue of a contract or tenancy, or (ii) where no such contract or tenancy exists, the person or organisation who has, to any extent, control of that part of the non-domestic premises.

The dutyholder must protect people from the risks of exposure to asbestos – which could include people who work in their buildings or who use them in other ways; for example, in the case of a school building, the teachers, pupils, parents, etc.

The duty to manage requires the dutyholder to produce three documents:

1. Asbestos survey – the purpose of an asbestos survey is to assess if there are any asbestos-containing materials (ACMs) present in the building and to record their location, amount and condition. The survey should be carried out by a competent asbestos surveyor. Any areas a surveyor cannot access to inspect must be presumed to contain asbestos.
2. Asbestos register – the information in the asbestos survey should be used to produce the register. The asbestos register is a live document which must record the location and condition of ACMs, an assessment of exposure risk and the actions required to manage this risk.
3. Asbestos management plan – the information in the asbestos register should be used to produce a plan to manage the risks to ensure that no one is exposed. The plan is a live document, which should be reviewed every 12 months or sooner, if necessary, as changes occur.

The rise in prosecutions

In the six months prior to the launch of the ‘Asbestos: Your Duty’ campaign, according to HSE’s register of public convictions and notices, there were three prosecutions brought for breaches of regulations under CAR 2012 and/or the Health and Safety at Work Act, etc. 1974 (HSWA 1974) and/or the Construction (Design and Management) Regulations 2015 (CDM 2015).

Of these three prosecutions, two were against companies, which subsequently received fines of £90,000 (Esskay Construction Limited) and £2,660 (RWH & Sons Ltd). The third prosecution was against an individual (Sean Thomas Faulkner) who received an 18-month community order.

However, in the six months following the launch of the campaign, the number of prosecutions more than doubled to seven prosecutions (although one of these was an appeal against sentence), with the first prosecution hitting the headlines less than one week after the launch of the campaign (James Pett, a company director).

Not taking into account the appeal against sentence, of these six prosecutions one was against an individual (James Pett), one was against companies (P Turnbull Joinery and Buildings Services Ltd and Alt Berg Holdings Ltd), three involved both a company and its directors being prosecuted (Cavendish Winchester Ltd, DOV Services Ltd and Eye Track Limited), with the final prosecution against a former director due to the company being in liquidation (Paul Stephens).

Francesca Ledwith is an associate solicitor at law firm Pinsent Masons. Photograph: Pinsent Masons

Notably, in March 2024, a prosecution against a company and its directors led to one of the company directors receiving an immediate custodial sentence. HSE reported that Cavendish Winchester Ltd was set up by Stephen Davies with the sole purpose of refurbishing a commercial unit into student rental accommodation. The company removed an estimated 10 tonnes of asbestos insulating board (AIB) during the refurbishment in late 2019 and early 2020.

Southampton Crown Court heard that both company directors, Stephen Davies and Neil Bolton, were aware of the extent of AIB within the building as they had previously sought legitimate quotes for its removal. However, they chose to save a considerable amount of money by using workers unqualified to do the job and unaware of the risks to their health, rather than choosing a licensed asbestos removal contractor. The company and the two directors pleaded guilty to offences under HSWA 1974. The company was fined £30,000 and Neil Bolton received a four-month sentence, suspended for 12 months. However, Stephen Davies received an immediate eight-month custodial sentence.

While this increase in prosecutions may be a coincidence given that the offences occurred before the introduction of the campaign, there appears to be clear focus from HSE to prosecute offences under CAR 2012, HSWA 1974 and CDM 2015.

It may be that this new focus on increased prosecutions is a result of the data for mesothelioma and asbestosis demonstrating consistent figures across 2021 and 2022 of mesothelioma deaths. The latest available data was published in July 2024.

The data found that there were 2,257 mesothelioma deaths in Great Britain in 2022, with a similar amount of lung cancer deaths linked to past exposures to asbestos. The figure for mesothelioma is almost identical to 2021 when there were 2,268 mesothelioma deaths in Great Britain. Additionally in 2022, there were 1,755 new cases of mesothelioma assessed for Industrial Injuries Disablement Benefit, which is a decrease from 2021 when there were 1,920 new cases.

Other emerging trends

Of note, there are a number of trends which are emerging from this increase in prosecutions:

1. More directors are being prosecuted – of the six prosecutions, four involved company directors being prosecuted. This is a somewhat surprising trend given that statistically HSE is far more likely to prosecute corporate organisations than it is to prosecute individuals as the evidential bar is high and any prosecution of an individual must, according to HSE’s Enforcement Policy, be ‘fair, warranted and justified’.
2. Increased use of custodial sentences – there has been an increase in the custodial sentences handed out to individuals when they are prosecuted for such offences. Of the four prosecutions which involved company directors, two led to company directors receiving either a suspended sentence of imprisonment or immediate custody.
3. Average fine has increased – the average fine in the six months preceding the campaign was just over £30,000 whereas the average fine since the campaign is just under £40,000. While this increase in fines may not seem substantial, it is significant when considered alongside the increase in individual prosecutions.

What next?

We will have to wait to see whether this increase in prosecutions continues and whether these early trends continue. However, I anticipate that with HSE pursuing another public awareness campaign and the latest data showing the serious effects of exposure to asbestos, we will see the pattern of HSE bringing more prosecutions and seeking tougher sentences continue to develop.

It will be important that all companies and directors are aware of their obligation to manage exposure to asbestos and protect their workers and others who could be exposed to it, and maybe more importantly, the consequence of them not complying in the present climate.

Francesca Ledwith is an associate solicitor at Pinsent Masons law firm. Contact her at:

pinsentmasons.com