Asbestos is dangerous and quite rightly its presence is a significant risk that requires careful and diligent management.
Following on from Partner Jim Byard's recent article, Andrew Brammer, Partner in our Regulatory defence Team, explores the key learning points from a recent case involving asbestos.
According to the HSE's website, asbestos "is the single greatest cause of work-related deaths in the UK." Asbestos is dangerous and quite rightly its presence is a significant risk that requires careful and diligent management. However, to an employee or member of the public, my experience is that to them the fear is that asbestos is a silent killer with a certain outcome over an uncertain period of time.
This was illustrated in a recent case. A corporate client comes to the firm seeking advice and support in relation to a suspected asbestos release at one of its premises following construction works. We are tenant in leasehold commercial premises. As part of the planned works, a principle contractor and designer were appointed and pre-construction information produced and distributed to the relevant parties.
The premises were closed, the works completed and on completion of the works, the premises were handed back to us. So far so good. However, several weeks after the premises had been handed back into our control, traces of asbestos containing material was discovered. In the period between handover and discovery of the suspected asbestos containing material, the premises had been occupied by both our employees and members of the public. The client responded as it should and the premises were closed, cleaned and expert analysis undertaken.
However, the impact on members of staff and public was immediate. Many individuals expressed open and genuine concern for their welfare and the health and wellbeing of family members and co-workers. Despite expert analysis confirming the risk to health was very low, members of the public and employees were (and remain) understandably concerned.
So from this scenario, what can we learn:
- Asbestos demands careful management.
- Great care needs to be taken when planning and undertaking any maintenance or construction works in any domestic and non-domestic building, even if you are using an approved contractor. Whilst this scenario played out in retail premises, it could be equally applicable to an office where cable networking works are taking place and a well-meaning contractor drills through bonded asbestos sheeting, potentially exposing himself and any other persons present to asbestos debris.
- To manage asbestos you have to know what type it is, its condition and where it is located. This is achieved through an asbestos management survey or refurbishment and demolition survey undertaken by a competent expert.
- The asbestos survey needs to be reviewed annually and before, during and after any works (planned or ad hoc) are undertaken.
- A copy of an in-date asbestos survey should be kept at premises or be easily accessible (e.g. on-line), so that there is always a point of reference for anyone planning or undertaking works that might impact on the presence of asbestos.
- If works are required near-to or at the location of asbestos containing materials, those works must be planned and executed in such as way as reduce the risk of exposure to asbestos to as low as is reasonably practicable. Be prepared to demonstrate why the works went ahead and how they were carried out safely.
- Directors and senior managers can be held criminally liable for breaches by a company of its duties as an employer to ensure the safety of employees and to manage the risks to non-employees from its activities. All that needs to be proved is that a failure by the company resulted from their consent or connivance or was attributable to their individual neglect. The recent jailing of a company director for 10 months for failings by his asbestos removal company is a good example of this principle in action."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.