Even though the use of asbestos in construction was banned over two decades ago, the HSE estimates that historic exposure to it remains the most significant cause of workplace deaths in Great Britain, with the nation experiencing approximately 5,000 asbestos-related deaths each year. Asbestos is still present in many public and private buildings and when disturbed or damaged, all forms of asbestos are carcinogenic and are linked to diseases such as mesothelioma and asbestosis. It therefore remains a risk that employers cannot ignore.
For this reason, on 15 January 2024 the HSE launched a new campaign "Asbestos: Your Duty" which aims to improve understanding of the legal duties relating to the management of asbestos.
The legal duty
Despite the UK banning the importation, supply, and use of all forms of asbestos in 1999, materials containing asbestos remain present in buildings constructed prior to 2000, and in some historic equipment and machinery still in regular use today. The main risk from asbestos arises when it is disturbed or damaged, meaning that particular care must be taken around maintenance or repair work.
The Control of Asbestos Regulations 2012 place strict requirements on duty holders to take proactive steps to manage asbestos, and a recent English prosecution confirms that HSE will not hesitate to pursue enforcement action against both companies and individuals who breach of these duties.
As will be highlighted in the HSE's new campaign, the legal duty sits with the individual or organisation responsible for the management or repair of non-domestic premises or the common parts of a multi-occupancy domestic property. These duty holders must take all reasonably practicable steps to eliminate or at least reduce the risk of exposure.
Duty holders are required to assess the presence of asbestos containing materials in their premises and maintain an up-to-date record of the location and condition of such material in order to manage the risk of exposure to airborne fibres from asbestos containing materials. That information must be provided to anyone liable to disturb the material, including the emergency services.
Practical steps
In most cases, discharging the legal duty will involve engaging a suitably qualified and competent asbestos surveyor to carry out an asbestos management survey. This will provide the duty holder with accurate information regarding the location, extent and condition of asbestos containing materials. The survey must be conducted in all locations where safe access can be obtained and if an area cannot be safely accessed, that area must be presumed to contain asbestos and managed appropriately. Where there is reason to believe that asbestos may be present all materials should be assumed to contain asbestos, and therefore pose a risk, unless it can be proven otherwise.
After completion of the asbestos management survey, the duty holder must arrange for the production of an asbestos register. Crucially, this must be treated as a live document and regularly reviewed and updated. The register must clearly identify the areas containing asbestos on site plans, include an assessment of the risk of exposure in the various parts of the premises, and detail the steps which will be taken to reduce that risk.
Finally, an asbestos management plan should be created which contains details of routine checks and procedures to be put in place to prevent inadvertent disturbance of asbestos containing materials. This must be reviewed every 12 months, or earlier if changes in circumstances warrant.
Construction
The greatest risk of asbestos exposure is likely to occur during refurbishment or demolition work of premises constructed before 2000. Because of this, additional requirements are imposed on duty holders involved in this type of work. These requirements must be considered during the planning stage of any work.
The additional requirements include carrying out a more invasive asbestos management survey, ensuring that work is not carried out in areas that have not been surveyed, and, where work has to be undertaken in any area containing asbestos, ensuring that the work is only carried out by a competent and properly trained specialist.
Recent prosecution
The launch of the HSE's new campaign is a clear indication of the level of attention that will be given to asbestos management in 2024. It is equally clear that the HSE won’t hesitate to take enforcement action, including prosecution, to ensure proper management of the risk posed by asbestos.
The HSE recently prosecuted an individual in England, who was aware of the legal requirements associated with the removal of asbestos, for intentionally falsifying clearance paperwork after removing asbestos containing materials from a school, when he did not hold the required license for that work. The individual was convicted and given a community service order and ordered to pay a fine.
Although this is an example of the prosecution of a contractor, it is a warning to be heeded by duty holders, too. Where engaging a contractor to undertake specialist asbestos work it is essential that their qualifications and experience are properly checked. Unscrupulous contractors do, unfortunately, exist and if work is not carried out safely the HSE will undoubtedly ask the duty holder is to provide details of the steps taken to verify the suitability, expertise and qualifications of the chosen contractor. If that evidence cannot be provided, the duty holder will be exposed to the risk of prosecution.
If you require any further information on this topic, please contact Malcolm Gunnyeon or your usual Brodies contact.
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