health and safety - Asbestos watch

The main aim of the HSC's proposals is to introduce an explicit 'duty to manage' asbestos risk in non-domestic premises. The proposals are a consolidation of the Control of Asbestos at Work Regulations 1987 and subsequent amendment regulations into a new set of regulations, the Control of Asbestos at Work Regulations 2001.

Amendment of the 1987 regulations
The thrust of the proposed new requirement for the management of risk from asbestos is to ensure employers provide sufficient information to vulnerable workers. Employers and the workers have to make adequate risk assessment decisions about asbestos in the workplace, before they begin their work. This risk must be assessed under the new regulations; every employer would be required to make a 'suitable and sufficient' assessment as to whether asbestos is, or is liable to be, present in non-domestic premises 'occupied' by the employer and in which people work.

For the purposes of making this assessment, the employer must take 'such steps as are reasonable in the circumstances'. This includes any building plans that are available and either a visual examination or a survey of those parts of the premises that are reasonably accessible.

This is more onerous than in previous legislation as materials of unknown composition are presumed to contain asbestos unless there is a reason to suppose they do not – this leads to full-scale asbestos precautions being applied to the work.

The idea behind this is to allow occupiers the flexibility to decide whether to have all parts of their premises surveyed, or simply to treat doubtful materials as though they are asbestos. While the option of carrying out a full survey of materials in the premises or a simple visual examination allows flexibility, unless the survey has been carried out the employer will still be left with the uncertainty that a visual examination may not be sufficient to discharge this duty.

All examinations would need to be recorded in written form and must include the location of the asbestos or presumed asbestos material. The written record must be kept up to date and made available to any employees or people likely to be working in the area concerned.

The duty to manage would be placed on an employer in respect of its employees but also in respect of any other people who may be affected by the work activity, whether they be at work or not.

As is usually the case in health and safety law, the regulations would apply to self-employed people in exactly the same way as they apply to an employer and employee. This also means that a self-employed person is treated as both an employer and an employee.

The other main proposed duties are:

• to keep an up-to-date written record of the location of asbestos and presumed asbestos materials
  
• to monitor the condition of asbestos and presumed asbestos materials
  
• to assess the risk of exposure from asbestos and presumed asbestos materials and record the action necessary to ensure that:
  i) material known or presumed to contain asbestos which may create a risk of exposure either because of its date and location, is repaired, or if necessary removed
  ii) any material known or presumed to contain asbestos is maintained in a good state of repair
  iii) information about the location and condition of material known or presumed to contain asbestos is given to anyone likely to disturb it.

New Approved Code of Practice
A revised Approved Code of Practice (ACoP) would accompany the new regulations. In the current draft it advises employers on how to comply with the new duties imposed by the regulation, in particular the duty to manage the risk from asbestos.

When the premises are assessed it is said that all areas including yards, sheds, outbuildings, underfloor service, ducts, external runs of pipe and bridges must be included. It may be that the employer may not carry out any work as a consequence of the regulations, but when deciding on a third party to carry out some or all of the work the employer will need to ensure the personnel have adequate training and experience. The employer must also ensure that these personnel can demonstrate independence, impartiality and integrity, as well as an adequate quality management system.

The ACoP also provides guidance on what steps are reasonable in the circumstances to decide whether there is (or may be) asbestos present in the premises, and if there is some (or may be some), to find out where it is.

In summary the draft ACoP and guidance give advice about methods for:

• identifying asbestos
  
• maintaining a register of asbestos
  
• assessing the risk
  
• preparing an action plan to monitor the state of asbestos in buildings
  
• setting up administrative systems to control any future disturbance of suspected asbestos material.

Changes to The Health and Safety
(Enforcing Authority) Regulations 1998
The Health and Safety (Enforcing Authority) Regulations 1998 allocate responsibility for enforcing the Health and Safety at Work etc Act 1974 between the HSC and the local authorities, on the general basis of the main activities carried on in the premises. Most asbestos work in premises normally allocated to local authorities for enforcement is clawed back to the HSC, if the work is carried out inside an enclosure. The amendment is worded such that where an enclosure is erected solely for the purpose of preventing the release of asbestos into other parts of the building, this will no longer automatically trigger a switch on the enforcing authority. This amendment will streamline operations, bringing regulations into line with modern practice and should have no other effect on employers.

Effects of the changes
The practical consequences for the average employer, if these proposals are approved, will be in the twin fields of costs and paper work. The HSC estimates the cost of these extra regulations to be between £167 to £16,248 a site, depending on the size, with the average cost being £4,000 a site.

There is likely to be scope for uncertainty as to who is an 'occupier' for the purposes of the duty to manage. As between landlords' and tenant' responsibilities under the repair, covenants will be a significant consideration.

Contracts for property maintenance services and facilities management will require a review to ensure that appropriate procedures exist for the necessary compliance arrangements, including the provision of any necessary risk assessment material by the client. Inevitably, the changes will give rise to extra red tape and will act as a brake on carrying out remedial work or refurbishment.

However, the new duty to manage does fill an unsatisfactory gap where the old regulations were unclear and left building owners and employers vulnerable to liability. The revised requirements are a better working guide and can be seen as an opportunity to ensure that all the required steps have been complied with.

That said, the proposals are a significant change from the existing duties. The need for a different approach is apparent given the new expectations. Therefore an employer must ensure that sound advice is obtained in relation to work carried out in areas containing asbestos or asbestos-containing materials. But little guidance, if any, is given in the new proposals as to how to appoint a suitable organisation with sufficient experience and training to carry out the work.