More than one million workplace premises nation-wide are thought to contain some form of asbestos. The Control of Asbestos at Work Regulations 2002 will finally come into force in May this year in an attempt to tackle the problem. But despite businesses having had a lead in time for compliance a recent survey by Zurich Risk Services revealed that two-thirds of British businesses were unprepared for the new regulations and only 54 per cent were aware of them. Although these figures are likely to have improved by now, a significant number, in particular smaller businesses, still lag behind.
The Regulations and the accompanying statutory guidance will introduce new duties on "employers" to carry out a suitable and sufficient assessment to determine whether asbestos is or is liable to be present on their premises. It provides that any person who has an obligation to carry out maintenance and/or repair of any premises must also take reasonable measures to enable the employer to comply with its obligations.
If asbestos is discovered then a risk assessment must be carried out. A written plan must be devised and measures taken to manage the risk must be documented. If the asbestos is moved, location of the substance must be provided to anyone liable to disturb it and made available for the emergency services.
Employers will not be able to carry out work which could expose employees to asbestos unless they have first assessed the risk, recorded the risk and complied with all necessary steps under the regulations. This will be an ongoing duty. They will also need to prepare a suitable written plan of work detailing how that work will be carried out including the method and the equipment to be used. The enforcing authority must also be notified in writing of certain particulars including the processes, the activities involved and the types of asbestos before any work is carried out. Adequate and regular instruction and training must be given to employees who are liable to be exposed to asbestos or to those who supervise those employees.
Other duties include :
- A duty to minimise exposure to asbestos; if a control method is used that must be properly used and maintained and adequate protective clothing must be provided;
- Safety procedures must be put in place;
- Any areas where work is carried out must be kept clean and designated by zones depending on the levels of exposure to asbestos;
- Fibres in the air must be monitored if there is a risk and all monitoring must meet ISO standards;
- Raw asbestos must be stored in sealed containers and marked appropriately.
In most cases the onus of complying with the regulations will rest with employers as they traditionally have responsibility for the maintenance of premises. If responsibility rests with the owner or managing agent, they are obliged to play their part in enabling the employer to comply with the duty. But where sole responsibility for maintenance rests with the owner or agent, such as the common parts of multi-occupied buildings, they have the primary duty of carrying out and recording the results of an assessment, preparing risk management plans in partnership with the occupiers and ensuring all those potentially at risk are informed about the location and condition of the material. It appears that the employer or owner can delegate the work to a separate body but they cannot delegate the legal responsibility, therefore they must satisfy themselves that all the relevant provisions are in place.
The HSE will enforce the Regulations and has the ability to impose sanctions on duty holders who do not comply. If the case is heard in the Magistrates Court businesses can be fined £20,000 and much more if the case is heard in the Crown Court. The HSE is not seeking complete compliance on 21 May, especially from organisations with extensive property portfolios. But inspectors will expect a compliance strategy to be in place.
The UK is still paying the price for its industrial past when asbestos was used in more than 3000 products ranging from wall and floor coverings to plastics and specialised papers. The HSE estimates that at least 3500 people in Great Britain die each year from mesothelioma and asbestos related lung cancer as a result of past exposure to asbestos. These numbers are predicted to go on rising into the next decade. Sadly those dying during that period will have already inhaled a fatal dose of asbestos fibres as it can take anywhere from 15 to 60 years after first exposure before the development of these fatal diseases. Businesses have had eighteen months to comply with the regulations. Time is now running out and companies need to act promptly. Their lives and the lives of their employees could depend on it.
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