With air quality high on the agenda – especially in London – could it turn out be the construction industry’s next asbestos?
Discussion about air quality has grown in recent years. It encompasses the whole range of distance scales (from personal to global) and regulation of emissions takes a variety of forms.
In the construction sector, employers hold the full extent of legal duty to protect the health, safety and welfare of employees, whether work is undertaken indoors or outdoors. That duty extends to assessing workplace risks and putting in place measures to control those risks, so far as is reasonably practicable.
Employers will be familiar with the risks associated with airborne materials commonly found on construction sites such as dust from hardwood, softwood and cement, which are regulated by COSHH (Control of Substances Hazardous to Health) and REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals).
Risks arising from general poor air quality and any duty to protect employees from these risks are less widely understood and most of the recent focus has extended to protection of the public.
Air pollution presents a risk to workers that cannot be ignored.
The World Health Organisation reports that in 2014, 92 per cent of the world’s population lived in places where WHO air quality guidelines levels were not met. City drivers may be exposed to higher levels of air pollution than walkers or cyclists. Outdoor workers are at an increased risk when pollution levels soar.
“Air pollution presents a risk to workers that cannot be ignored”
There is already considerable statutory regulation of emissions of noxious substances into the atmosphere, but the duties are directed more towards the public than those exposed at work.
There has almost been a perceived rarity to the types of situations where employees might be affected, but in reality the focus for an employer’s duty already exists and good examples can be seen within the CDM Regulations and the recent changes made in that area.
The prohibition of smoking tobacco in certain places pursuant to the Health Act 2006 had already had an impact on a considerable number of public places, but even there the focus has predominantly been upon the indoor environment.
Use of legislation
The past decade has seen a progressive emphasis away from pure national air pollution control legislation to more ‘effects-based’ legislation, particularly the 2000 Air Quality strategy which was superseded by the 2007 Air Quality strategy. This targets priority pollutants and there is now a far better means of measuring acceptable exposure levels.
The use of protective equipment measures (eg masks, helmets and air-fed respirators) has been predominantly associated with the indoor environment, but operational changes have been taken to mitigate air quality risk.
This has been done not only by rotating staff who work outside in high-risk areas, or banning drivers from leaving their engines running when stationary near sites, but also via effective selection of dust suppression and local exhausted ventilation equipment as well as the use of respiratory protective equipment as a final resort.
Many businesses now train their drivers on techniques to alleviate risk, such as closing vehicle windows when in a tunnel and using air ‘Recirc’ function.
Undoubtedly there are foreseeability and causation challenges to be faced by anyone pursuing a claim relating to outdoor exposure to air pollution, given the significant variation to the polluters of the environment. However, caution on the part of employers is needed.
Only time, and, in part, technology will tell if such claims will succeed on any widespread basis, which would make air quality the next asbestos for the industry.
The duties can be drawn out and contended for against employers but they are rarer, more hidden and more difficult to prove.
In the meantime, prudent preparation and precaution by employers is advisable.
Jason Bleasdale is a partner and Helen Simms is legal director at Clyde & Co