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GUEST COMMENT How can retailers mitigate air quality risks?

Having an overview of business operations is important in challenging times. Image: Fotolia

An environmental research group has warned that the global cost of air pollution caused by fossil fuels is $8bn – roughly 3.3% of the world’s GDP. Meanwhile, it is estimated that around 40,000 deaths are caused every year as a result of exposure to outdoor air pollution, with lower income households suffering the most. Major sources of air pollution come from transportation and heating.

Regulators are not currently bringing enforcement proceedings in relation to risks arising from air pollution, making it difficult for retailers to understand what measures they should be putting in place to reduce the risks they pose to employees as well as the wider public. However, the law approaches risk and safety as relative concepts which change over time as knowledge and understanding evolve. We believe that it is only a matter of time before regulators intervene. There can be no doubt that as society becomes more conscious and concerned about the potentially devastating consequences of air pollution the pressure on regulators to do so will increase. 

So what legal duties are placed on retailers in relation to air pollution? The duties that employers must comply with are set out in the Health and Safety at Work Act 1974, which state that the health and safety of employees and non-employees must be ensured so far as is reasonably practicable. The duty is onerous. The Act covers activities that make a material contribution to toxic air. There is no reason in principle why companies and organisations responsible for emissions in breach of the general duties (and the related Regulations) could not face criminal prosecution. Conviction could result in substantial and potentially crippling fines. Directors and individual employees could also face prosecution. 

Currently the government has a duty to compile a national air quality strategy under the Environment Act 1995, although a new Environment Bill is being considered by Parliament. Local authorities must review air quality in their surrounding areas. Local authorities are required to designate Air Quality Management Areas (AQMAs) if they find that any areas exceed the air quality limits. The AQMA then sets objectives and introduces further controls to reduce the pollution levels. The result is that retailers who operate in various parts of the UK need to be aware of the different requirements that local authorities have imposed so far as air quality management is concerned. 

The retail industry also needs to be considering ways of mitigating risk going forward. For example, increasing the use of electric vehicles is one measure. DPD has embraced this approach and its electric fleet is set to rise to 450 vehicles by May 2020. But mitigation measures are not just about electric vehicles. Retailers should also consider training staff drivers to reduce their vehicle emissions. Such training could include reducing rapid accelerations and decelerations to improve fuel consumption and switching off engines when parked by the roadside and when dropping off people or deliveries. 

The City of London has produced a helpful guide for retailers and support services in relation to improving air quality. Its retail and service air quality checklist contains mitigation measures that can be used by retailers across the country. It focuses on communication; the supply chain; transportation; operations and infrastructure.

In relation to communication, air quality can be built into CR reporting; the health benefits of improving air quality can be promoted and awareness can be raised across all elements of operations.  Looking at the supply chain, consideration can be given to low/zero emission inbound deliveries; low/zero emission outbound deliveries and waste collection by low/zero emission vehicles.

Mitigation measures in relation to transportation include promoting walking and cycling for staff and customers. To improve air quality, the City of London encourages zero emission ‘last mile’ delivery of as many goods and services as possible. 

With its aim to become the UK’s greenest grocer, Sainsbury’s is a good example of a retailer that is taking a number of mitigation measures to improve air quality. One initiative is managing waste through the efficient use of delivery vehicles. Once a delivery of stock has been made to a store, the delivery vehicle then takes the store’s waste back to the distribution centre for recycling. A waste collection journey is saved and the reduction in such journeys leads to an improvement in air quality.

Mitigation steps can be taken in relation to operations and infrastructure as well. The retail sector contributes around 7% of the total energy consumption within buildings in the UK. Using energy efficient equipment and appliances can reduce operational emissions and help improve air quality. Ground source energy systems can be considered to reduce the dependence on gas fired boilers. Meanwhile, green roofs and walls can insulate buildings from fluctuations in external temperatures and absorb pollutants.  

Simpler steps to save energy can be taken too. Employees can be encouraged to turn off computers and monitors overnight rather than leaving them on standby. Thermostats can be set to meet only minimum heating. 

In the future we expect air pollution to make its way much higher up on the regulators’ agenda. Parliament might well enact bespoke regulations. Until then, retailers would do well to implement as many measures as possible within their environmental and safety agendas to prevent reputational and financial damage from occurring down the line by opening themselves up to civil litigation risks. 

Keith Morton QC and Fiona Canby are barristers specialising in health and safety, inquests and inquiries at Temple Garden Chambers

Main image: Fotolia

Author images courtesy of Keith Morton/Fiona Canby/Temple Garden Chambers

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