First published by Master Builder, December 2003.
With the coming into force of the Control of Asbestos at Work Regulations 2002 on 21 November 2002, those who manage or occupy property are under a duty to manage asbestos contained within that property. They may be under a duty to survey their property to identify the presence of asbestos and will need to record the results of any such survey. They will have to give information to others and safeguard information and documents for the future. The initial costs of compliance across the UK are assessed at £3.85 billion rising to £5.4 billion over the next 50 years . It is estimated that these measures will save between 5,500 and 6,900 lives over the same period. The exercise is therefore economically as well as morally justified.
Who owes the Duty?
The Regulations only apply to non-domestic premises. Obligations are placed on the dutyholder. This term was introduced as a result of representations made to the Health and Safety Commission following the publication of their initial consultation paper in 2000 . At the consultation stage it was suggested that the duty should be owed by the “employer”. The consultees felt that there were often situations where employers could not realistically be expected to exert control over premises in which employees might face exposure to asbestos. Indeed, the Regulations are perhaps aimed at the risks faced by the peripatetic workers that are common in the building trades, such as plumbers, electricians and cablers: workers who spend days or even only hours at one place of work before moving on to the next job . The flip side is that such workers need protection from someone other than their employer. In the context of these Regulations the term dutyholder is a catchall phrase that fits the job.
The dutyholder is someone who has an obligation regarding the maintenance or repair of premises or the means of access to and exit from those premises, whether by contract or tenancy or otherwise. There may be more than one dutyholder at any one time in relation to any one place.
What is the Duty?
The most novel aspect of the Regulations is contained within Regulation 4, which comes into force next year, on 21 May 2004. The dutyholder “shall ensure that a suitable and sufficient risk assessment is carried out as to whether asbestos is or is liable to be in the premises” and shall take such steps as are reasonable and shall consider the condition of any asbestos found when carrying out the assessment.
The Regulations require a dutyholder, when making an assessment, to:
- consider building plans and the age of the building
- inspect those parts which are reasonably accessible
- review the assessment forthwith if there is reason to suspect the assessment is no longer valid or if there has been a significant change to the premises
- record the conclusions of the assessment
- produce a written plan identifying the affected parts of the premises, where asbestos is found, determining the risk involved and recording the measures to be taken to manage that risk.
The Regulations go into some detail as to the matters that must be specified in the plan and as to the circumstances when it must be reviewed. The Regulations also place an onus on the dutyholder to keep records. The dutyholder must not only create a written assessment but must create a record of the steps that have been taken to implement the measures arising from the assessment.
Regulation 4 places a positive duty on the dutyholder to take certain steps or to act in a certain manner. Other regulations are proscriptive, rather than prescriptive, and came into force last year, on 21 November 2002. By and large these other Regulations merely repeat the provisions of earlier Regulations, including the Control of Asbestos at Work Regulations 1987.
Summary
People are still being exposed unnecessarily and avoidably to asbestos when working within or when working upon the fabric of buildings. From May next year anyone working on the fabric of a building can ask the dutyholder for information about the presence of asbestos in the building and can expect to be given information about its location and state. The impact of these Regulations should bring it home to public liability insurers and corporate risk managers and others who manage or control property that they must protect the health and safety of their visitors and employees through proper and informed risk management or face the consequences of perpetuating a foreseeable risk of lethal injury.
By Andrew Morgan, solicitor in the Asbestos Claims Department.