Nigel Bryson examines the requirements for facilities and environmental managers to manage and control asbestos in buildings and looks at the legal costs of failing to do so.

The hazards of asbestos at work must be the most publicised topic within the subject of health and safety at work. In 1967, the Government established the Mesothelioma Register. Mesothelioma is the cancer that is specifically associated with exposure to asbestos fibres.

In the first year — 1968 — there were 153 mesothelioma deaths registered; by 2013 — the latest figures available — there were 2538. The Health and Safety Executive (HSE) is anticipating mesothelioma deaths to remain around 2500 per year for the rest of this decade.

A licensed asbestos contractor regime has been in place since 1983. Asbestos regulation has undergone various reviews but the Control of Asbestos Regulations 2012 reflect the key risks that asbestos poses today and what must be done to reduce them. That is, manage and control asbestos in buildings being used today.

The legal cost of failure

Two recent prosecutions highlight some of the challenges facing managers responsible for controlling and maintaining buildings.

In April 2016, two companies were fined when asbestos was disturbed during the refurbishment of a building. The project was to convert a former commercial building into a number of flats for occupation. The client was aware that the building contained asbestos but did not pass this information onto the contractor. In addition, no refurbishment and demolition survey was undertaken to establish where any asbestos may have been located before work started.

As a result, two workers stripped out asbestos insulation board (AIB) “without any effective precautions and, therefore, received significant exposure to asbestos fibres”. The two workers were employees of 24 Hour Maintenance Services Ltd, contracted by Firestones Estates Ltd — the client — to undertake the refurbishment work.

The client knew there was asbestos present but did not inform the contractor. A refurbishment and demolition survey must be carried out if a building is going to be renovated or modified. Indeed, the name of such surveys was changed in guidance some years ago to make it clear that when a building is to undergo refurbishment, a refurbishment and demolition survey is the one required.

Those workers who may come across asbestos in their work — such as workers undertaking refurbishment work in a building — need to be trained in recognising where asbestos is likely to be found and what to do if they suspect asbestos is present. It appears that the two workers were not suspicious of there being no survey available.

As a result of these various failings, both companies were fined: Firestones Estates received a £10,000 fine; 24 Hour Maintenance Services Ltd was fined £5000.

In November 2014, Amey Communities Ltd was contracted to carry out some roof refurbishment at Lings Primary School in Northampton. During the work, AIB was disturbed in a small plant room. In the subsequent investigation, the HSE found that the company ”failed to monitor and identify asbestos materials”. In addition, the company failed to ensure that its “key personnel had suitable asbestos awareness training”.

On 9 February 2016, Amey Communities Ltd was fined £20,000 for the failings in their “project management arrangements”.

For facilities managers, it should be appreciated that the failings identified in the two cases are not difficult to figure out. These were basic flaws in following straightforward guidance on safe systems of work when potentially working on or near asbestos. If the fines seem small, it is likely that they relate to the size of the companies involved.

From 6 April this year, the sentencing guidelines for breaches of health and safety law changed. It is likely that fines will increase in the future as the risks of injury and ill health are given greater prominence in sentencing than in the past.

It should be recognised that serious breaches of asbestos precautions have resulted in larger fines for organisations in the past. For example, the retail company Marks and Spencer was fined £1 million in 2011 for exposing people to asbestos fibres during refurbishment in its premises.

While these fines are sobering, most facilities managers will have processes in place to protect people if the buildings they control are being renovated. However, the real issue is whether or not the control measures in place are effective in identifying where asbestos is located and protect people who need to work on or near it. Hence, managers need to regularly check that what they think should be in place really is in place when renovation work is proposed and this is not simply a question for their own workforce.

Licensed asbestos contractors

The HSE has a specialist Asbestos Licensing Unit (ALU) in Edinburgh. This unit deals with all the applications and renewals for licensed asbestos contractors. In both the prosecutions identified above, the workers disturbed AIB. If AIB is to be removed, it can only be done — legally — by using a licensed contractor. Lists of such contractors can be accessed freely at the HSE website.

In 2015, there were around 445 licensed asbestos contractors. They are closely regulated by the HSE, yet there were still some that breached health and safety legislation. Up to October 2015, there had been 14 enforcement notices issued to licensed asbestos contractors. The HSE reported that:

“Of these 14, 11 were for non-asbestos breaches: 2 work at height; 3 CDM [Construction and Design Management Regulations]; one COSHH [Control of Substances Hazardous to Health Regulations]; one Noise; 2 management of health and safety at work; one inadequate RPE; one unsuitable plan of work; and one removal of AIB without an enclosure.”

While these numbers of enforcement notices are relatively low, asbestos work is among the most regulated in the construction sector. Hence, for facilities managers, it is critical that when planning asbestos removal work, they should discuss all potential hazards with licensed asbestos contractors, not just those related to asbestos.

Revised guidance

During 2016, the HSE is expecting to make progress on two key publications: Asbestos: The Analysts’ Guide for Sampling, Analysis, and Clearance Procedures (HSG248) and the Asbestos: The Licensed Contractors’ Guide (HSG247). While these are aimed at those providing analytical or licensed asbestos contractor services, the guides are generally helpful to facilities managers in identifying what they should expect from those providing the respective services.

The Analysts’ Guide should be available later this year, as the HSE circulated a draft copy for comment in October 2015. The first draft of the Asbestos Contractors’ Guide is expected to be circulated for comment by the end of 2016.

Also, the HSE‘s revised Asbestos Task Manual is likely to be published in the summer. This publication has a series of task sheets and the precautions that need to be taken.

EU asbestos directives

While the EU referendum on 23 June 2016 may have grabbed all the headlines recently, the European Commission has published a review of the asbestos directives. The HSE is looking to update and simplify the respective directives, with an aim of including the, “duty to manage” asbestos as well. The review may well lead to changes within the European law. However, this is likely to be a long process.

Vigilance needs to be maintained

Although major changes to asbestos regulation are unlikely in the foreseeable future, there may be changes to working practice guidance. The changes in the sentencing guidelines are likely to lead to bigger fines in the future. The fact that so many people are dying from mesothelioma, and effective controls have been known about for years, means that law courts are unlikely to be sympathetic to failures that expose workers and the public — especially children — to asbestos fibres.

Facilities managers must be vigilant in ensuring appropriate control measures are in place and are effective in practice.

Last reviewed 13 June 2016