This isn’t just any litigation – this is Marks and Spencer litigation. In a case brought by the Health and Safety Executive (HSE) against the high-end retailer, Marks and Spencer have been found guilty of exposing shoppers, staff and construction workers to the dangers of asbestos-containing materials during the refurbishment of its Reading store.
Any commercial property must be operated in full compliance with the Health and Safety at Work Act 1974 and the Control of Asbestos Regulations 2006 when undertaking any activity that could possibly disturb the material. However, the HSE successfully alleged that Marks and Spencer failed to ensure that work at Reading adhered to the appropriate minimum standards set out in the legislation and approved codes of practice, calling it a ‘wake-up call’ for commercial property operators across the UK. Winchester Crown Court was told that not enough time and space were allowed for the safe removal of asbestos, with the retailer perhaps prioritising the shortest possible turnaround of refurbishment work in an attempt to minimise lost income. The fear of an ‘unsightly’ store appearance was also cited as an explanation for the hurried works.
Although M&S had compiled its own guidelines on the safe removal of asbestos, they were not followed by Wilmott Dixon Construction or PA Realisations Ltd, contracted to undertake the works. All parties failed to plan, manage and monitor the removal of this dangerous material whilst also allowing the disturbance of asbestos in areas that had not been surveyed extensively. In addition, the contractors were required to work through the night in confined, enclosed spaces enabling the systematic, though incorrect, removal of asbestos and allowing the store to open during business hours.
Arguably M&S were prioritising the profitability of their commercial property ahead of the inherent dangers of asbestos, with similar accusations made previously in relation to other works at the Plymouth and Bournemouth stores. Asbestos is the biggest single cause of work-related deaths in the UK, killing an estimated 4,000 people each year. Charles Gilby, HSE Principal Inspector, stated that ‘client accountability and responsibility is at the heart of this case, because asbestos can and does kill’. The seriousness of this fact is likely to be reflected in the sentencing of Marks and Spencer in September, hopefully serving as a warning and deterrent for the commercial property world.
