February 2010

Revised Health and Safety Executive (HSE) guidance for asbestos surveys came into force in January 2010, replacing current guidance known as MDHS 100.

It is a comprehensive regime covering surveying, sampling, and assessment of asbestos containing materials (ACMs).

It will affect you if you are:

• an asbestos surveyor
• a duty holder - a person or organisation having responsibility for non-domestic or domestic properties on whom falls the statutory duty to manage such premises so that occupants or employees are not exposed to risk from the presence of ACMs.

Unlike MDHS 100, the new survey guidelines impose express obligations on the Duty holder in relation to the planning and execution of the asbestos survey. The HSE emphasises that asbestos, a category 1 chemical carcinogen, is the cause of the greatest number of work-related deaths every year.

So what is new?

Types of asbestos survey

Under the new regime, there will be two types of asbestos survey:

• the management survey (akin to the Type 2 survey) - designed to locate, as far as reasonably practicable, the presence and extent of ACMs, so that the Duty holder can prepare a plan for the management of asbestos
  
• the refurbishment/demolition survey (akin to the Type 3 survey) - a much more intrusive survey, designed to locate all the ACMs so they can be removed before the refurbishment (whether small scale or a large project) or demolition takes place. Aggressive inspection techniques will be required, so controls must be in place to prevent the spread of asbestos debris
  

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February 2010

The Sentencing Guidelines Council (SGC) has published its definitive guideline on corporate manslaughter sentencing.

It sets out principles to guide courts in dealing with companies and organisations that cause death through a gross breach of care or where breaches of health and safety requirements are a significant cause of the death. The guidelines will come into effect from 15th February 2010.

The guidelines state that fines for companies and organisations found guilty of corporate manslaughter may be millions of pounds and should seldom be below £500,000. For other health and safety offences that cause death, fines from £100,000 upwards should be imposed.

In deciding the level of fine, the SGC says account must be taken of the financial circumstances of the offending organisation. In the guidelines, the Council emphasises the need for a court to have full, accurate and reliable information and details the method for ensuring that it is consistently provided.

When fixing the fine, the guidelines say a court should not be influenced by the impact on shareholders and directors, nor consider the costs of complying with other sanctions. However, the effect on the employment of the innocent may be relevant, as may the effect on provision of services to the public.

Factors increasing the seriousness of the offence identified by the Council include the foreseeability of serious injury, whether non-compliance was common and widespread within the organisation, and how far up the organisation responsibility for the breach went. Other factors that would aggravate the offence and raise the fine above the relevant minimum level include the number of deaths and serious injury caused, injury to vulnerable persons, failure to heed warnings or respond to near misses of a similar nature, cost-cutting, and deliberate failure to obtain or comply with relevant licences.

Publicity Orders, which compel companies and organisations to publish statements about their conviction for corporate manslaughter, details of the offence and the fine, are part of the penalty and should be imposed in virtually all cases, say the guidelines.

The fines will not attempt to value a human life – compensation will be assessed separately in these cases, but they will be punitive and substantial and have an impact on the company or organisation.”

The guidelines will apply to all cases which appear before the Courts after 15 February, even if the incident occurred a number of months or even years ago.

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