Two recent instructions by clients concerning exposure of their employees and contractors to asbestos has prompted me to discuss the issue in this edition.
Although the use of asbestos has been prohibited for a number of years in building and refurbishment works, it is still present in a vast number of premises across the country. Even premises which you consider to be relatively modern may well still present hidden dangers from asbestos.
Whether you own a building, are a tenant or, indeed, have some degree of control over a building without any form of contract or agreement, you will be deemed to have a duty under the relevant asbestos regulations. This means that you have an obligation to manage the threat from asbestos within the premises. Depending on the degree of control you have, this will cover all non-domestic premises and the common areas of domestic premises, such as halls and stairways.
I am constantly asked by clients about asbestos-related problems that can arise, particularly during refurbishment works. If you sublet a premises to a tenant who then carries out some refurbishment works or you carry out works yourself, there is a duty to cooperate with all the parties involved.
Normally, as the person owning or controlling a premises is best placed to understand what asbestos is present, there is an obligation on that person to share that information with those who potentially may come into contact with it, be that tenants or contractors or anyone else.
The law is quite clear on what you should you do: find out if there is asbestos in your premises and, if in doubt, make an assumption that some materials within the premises may contain it, in the absence of evidence to the contrary.
You also need to keep an up-to-date record of the location and condition of asbestos in the premises and assess the risk from it. This will allow you to prepare a plan on how you intend to manage that risk and then put that management plan into action.
In reality, it may be that if the asbestos is in good condition and is in an area that is confined, such as a locked room, that may be sufficient to manage the risk. If the asbestos is deteriorating, however, it may be that you need to secure the services of a licensed contractor to remove it or in some way manage it to prevent further deterioration.
No matter what steps you take, these need to be recorded and reviewed regularly.
Generally speaking, the best way to ensure that you are compliant is to commission a competent asbestos surveyor to produce a survey of your premises which confirms the presence or absence of asbestos-containing materials. Such a survey would effectively form the foundation of your management plan and any actions that will flow from it.
When you are commissioning work or allowing work to take place, you should share the survey and any other information that you have regarding the presence of asbestos and its condition with those who could be affected by it.
Importantly, you must always maintain a record of who you share information with and what information has been shared, to prevent any issues in the future whereby contractors or others deny being made aware of asbestos within your premises.
Clients are regularly caught out by their duty to manage asbestos and, as a result, expose themselves to civil claims by all those potentially affected by an exposure to the material, as well as prosecution for failures under the relevant regulations.
Don’t just assume that your premises does not have asbestos in it. You need to take positive action to check, to record what you find and plan accordingly.
Don’t let the first time you identify asbestos in one of your premises be when an employee or contractor is exposed to it, and you are faced with the consequences of this.