Cullen Asbestos Limited vs Health & Safety Executive for
| Jurisdiction | Northern Ireland |
| Judgment Date | 16 August 2016 |
| Respondent | Health & Safety Executive for |
| Docket Number | 00205/16IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 205/16
APPELLANT: Cullen Asbestos Limited
RESPONDENT: Health & Safety Executive for Northern Ireland
DECISION
The unanimous decision of the tribunal, on foot of the appeal by the appellant, is that the Prohibition Notice, dated 3 December 2015, issued by the respondent is affirmed.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr H Stevenson
Mr J Law
Appearances:
The appellant was represented by Mr D Coll, Chartered Chemist.
The respondent was represented by Mr D Reid, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
Issues
1. The issue for the tribunal to determine was as follows:-
“Whether the Prohibition Notice served on the appellant by the respondent under the Health & Safety at Work (Northern Ireland) Order 1978, on 3 December 2015, should be cancelled or affirmed; and, if the tribunal affirms the Prohibition Notice, whether it should do so in its original form or with such modifications as the tribunal may, in the circumstances, think fit.”
Reasons
2.1 The tribunal heard oral evidence, on behalf of the respondent, from Ms Nancy Henry, Dr Rowland Jones, Ms Kellie McNamara, Ms Christine Edwards; and, on behalf of the appellant, from Mr Stephen Adams, Mr Raymond Cullen and Mr David Coll. Mr Gareth Roddy had provided witness statement(s) to the appellant and the respondent; but the tribunal was informed, at the outset of the hearing by the representatives that Mr Roddy was not going to be called by either the appellant or the respondent; but it was agreed the said witness statement(s) would be admitted into evidence, by consent, without formal proof, but subject to the caveat that the weight, if any, to anything stated therein would be a matter for the tribunal (see later).
Having considered the evidence given to the tribunal by the said witnesses, the documents contained in the ‘trial bundles’, as amended, to which the tribunal was referred during the course of the hearing, together with the written submissions made by the representatives of the parties and provided to the tribunal, following the conclusion of the hearing, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the appellant’s said appeal, as set out in the following sub-paragraphs.
2.2 The appellant is an asbestos removal contractor licensed by the respondent to carry out asbestos removal. In or about late 2015, the appellant was contracted, following a tender exercise, to perform asbestos removal works at 90 Ballybarnes Road, Newtownards (‘the site’), by the principal/main building contractor, Gareth Roddy, who was engaged by the owner of the said site to undertake the refurbishment and extension of the said premises. This work included the demolition of outbuildings. All of the buildings outside contained asbestos and one of the outbuildings contained licensed asbestos.
2.3 Ms Nancy Henry, Principal Inspector of the construction group of the respondent, gave evidence to the tribunal, which evidence, insofar as relevant to the determination of this appeal, the tribunal accepts, in relation to various relevant ‘background’ issues relating to asbestos and the system of removal in Northern Ireland, as referred to below, none of which, in the course of its evidence, was strongly challenged by the appellant:-
“Background information to asbestos containing materials
There are three main types of asbestos which have been commonly used crocidolite (blue), amosite (brown) and chrysotile (white). All types of asbestos are dangerous but crocidolite and amosite asbestos are known to be more hazardous than chrysotile. Although asbestos is a hazardous material, the main risk to health occurs when fibres become airborne and are then inhaled.
Asbestos containing materials only release fibres into the air if they are disturbed and the greater the disturbance, the greater the risk to health.
Asbestos diseases can take many years to develop (average 20 – 40 years) and cause two main types of damage:
- cancer, eg mesothelioma and lung cancer; and
- fibrous thickening of the lung, eg asbestosis
There is no known safe threshold of exposure, therefore as the frequency, duration and level of exposure increases, so does the risk of developing health issues. Once the asbestos-related disease has been diagnosed, the person is left with the prospect of a debilitating impact on their health.
Asbestos-related deaths in Northern Ireland
Breathing in asbestos fibres can lead to asbestos-related diseases, which kill more people each year than any other single work-related illness. The last figures available for asbestos-related deaths in Northern Ireland are for the year 2013/14. In this period 63 asbestos-related deaths were registered, two more than in 2013.
These are those deaths where asbestos and/or mesothelioma have been mentioned on the death certificate either as a primary or secondary cause.
Asbestos is also known to cause lung cancer although this cannot be directly attributable to inhalation of asbestos fibres, as it can arise from other causal factors such as smoking.
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Asbestos licensing
Work with the most hazardous forms of asbestos can only be carried out by companies who have obtained a licence for such work from the Health & Safety Executive for Northern Ireland.
Asbestos licensing is a permissioning regime which is in addition to the general framework of health & safety law.
It is used when normal forms of regulations are not sufficient and where the extra demands imposed by the regime are justified by the benefits it brings. Permissioning regimes build on the fact that the legal duty to manage risks lies with the organisation that create them. Consequently exemplary management standards and arrangements are expected of license-holders, in addition to the specific knowledge required to carry out the work with asbestos.
A licence-holder has to be able to demonstrate excellent knowledge, competencies and skills involved with asbestos work, including:
- risk assessments, plans of work and work methods;
- training for employees, supervisors and managers;
- personal protective equipment (PPE) and respiratory protective equipment (RPE);
- enclosures for asbestos work;
- controlled techniques for asbestos work;
- decontamination and clearance
Before the asbestos removal work starts there must be a written plan of work (often also called a method statement) which gives practical details on the specific work methods and control measures for a particular job at a specific location.
The enclosure
Before the removal of the asbestos material starts a physical barrier is built around the work area and this is designed to contain any asbestos dust and waste arising from the work. This is called an ‘enclosure’ and is typically built from a wooden frame and polythene sheeting. Access to the enclosure is regulated through entrance and exit openings known as ‘airlocks’ and these allow control of movement of personnel, waste and equipment in and out of the work area. Anyone entering or working inside an enclosure must wear suitable protective clothing and respiratory protective equipment and must thoroughly decontaminate themselves on leaving the enclosure.
The enclosure should be effectively sealed and as airtight as possible to prevent asbestos fibres being released during the work.
Creating negative air pressure inside the enclosure
Mechanical extract ventilation (using equipment commonly called ‘a negative pressure unit’ NPU) is used to create negative pressure within the enclosure so effectively drawing in air through the airlocks and any remaining gaps (no construction method will give an absolute airtight seal). This ensures that the airflow through any leaks in the enclosure will be inwards rather than outwards, to ensure...
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