Marks & Spencer has expressed its disappointment at the £1 million fine handed down to it yesterday (27 September) for putting staff and customers at its Broad Street store in Reading at risk of exposure to asbestos.
 
The retail giant and three of its contractors were sentenced at Bournemouth Crown Court in relation to refurbishment work carried out between 2006 and 2007 at the Reading store and at a store in Commercial Road, Bournemouth.
 
M&S was fined £1 million and ordered to pay prosecution costs of £600,000, having been found guilty of breaching sections 2(1) and 3(1) of the HSWA 1974 for failing to protect staff at customers at the Reading store from the risk of exposure to asbestos between 24 April and 13 November 2006. The company was acquitted of four other similar charges in relation to the Bournemouth store, and a store in Plymouth.
 
During the three-month trial, which ended in July (click here for our original report on the case), Winchester Crown Court heard that, as the client, Marks & Spencer did not allocate sufficient time and space for the removal of asbestos-containing materials at the Reading store. Contractors had to work overnight in enclosures on the shop floor to remove small areas of asbestos before the shop opened to the public each day.
 
Prosecuting, the HSE alleged that the retailer failed to ensure that the work complied with the appropriate legislative standards. Although the company had produced its own guidance on how asbestos should be removed inside its stores, this was not followed properly by contractors during major refurbishment.
 
Principal contractor at the Reading Store, Styles & Wood Ltd, admitted that it should not have permitted a method of asbestos removal that did not allow for adequate sealing of the ceiling void, which resulted in risks to contractors on the site. Consequently, the Cheshire-based company was fined £100,000 plus costs of £40,000, after pleading guilty at a hearing in January 2010 to contravening sections 2(1) and 3(1) of the HSWA 1974.
 
Contractor PA Realisations Ltd (formerly Pectel Ltd) 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 5 May and 12 November 2006.
 
Witness said that areas cleaned by the company were recontaminated by air moving through the void between the ceiling tiles and the floor above, and by poor standards of work. The Manchester-based company, which went into administration in December 2008 and is awaiting dissolution, was fined £200.
 
Principal contractor at the Bournemouth store, Willmott Dixon Construction Ltd, of Hertfordshire, was fined £50,000 plus costs of £75,000 for breaches of sections 2(1) and 3(1) of the HSWA 1974 committed between 5 and 28 February 2007.
 
The company failed to plan, manage and monitor the removal of asbestos-containing materials, the court heard, and did not prevent the possibility of asbestos being disturbed by its workers in areas that had not been surveyed extensively. Willmott Dixon Construction is applying for permission to appeal the conviction.
 
In sentencing at Bournemouth Crown Court, 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.”
 
In a statement released after the sentencing, the retailer said: “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.”
 
The regulator’s southern head of operations for construction, Richard Boland, said: “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.”
 
Last year, Marks & Spencer plc earned before-tax profits of £714.3 million – up almost 13 per cent on the previous year. In its annual report for 2011, chief finance officer Alan Stewart attributed this partly to the company’s focus on “building an efficient business, with prudent operating cost management”.