Last reviewed 13 August 2019
Directors have a key role to play in ensuring that their organisations maintain good asbestos management practices in order to avoid prosecution.
This briefing will give you the essential background information and advice on implementing the necessary arrangements.
Asbestos is the collective name for a group of fibrous minerals, which are mechanically strong and resistant to heat and chemicals. Asbestos has been used in a wide range of applications in the past because of its excellent thermal insulation, fireproofing and other physical and chemical properties. Use of all asbestos was banned in the UK under the Asbestos (Prohibitions) (Amendment) Regulations 1999.
However, if there is existing asbestos in a building and it is safe if undisturbed, it can remain where it is — as long as it is managed effectively. Directors have a duty to ensure that if a building contains asbestos, a management plan is put in place to ensure that everyone using the building is protected against exposure to it. To assess such risks the asbestos must be located, and its condition identified so that anyone who may have to work on or near the asbestos can understand where it is. The record of the asbestos present on the site is called the Asbestos Register.
Directors need to be aware of their responsibilities in terms of effective asbestos management. Lack of awareness could lead to prosecution, regardless of whether someone was injured or not, imprisonment and personal penalties.
The Health and Safety at Work, etc Act 1974 specifically places duties on senior personnel such as directors. If a health and safety offence is due to the “consent, connivance or neglect” of directors and other senior staff members, then those individuals can be prosecuted personally. Employers have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees under the Act. Asbestos materials should be considered as a potential risk.
The Management of Health and Safety at Work Regulations 1999 and the Workplace (Health Safety and Welfare) Regulations 1992 impose requirements in relation to the identification and management of risks within the workplace.
Under the Control of Asbestos Regulations 2012 (CAR), employers are required to identify the type of asbestos that might affect any workers liable to be exposed to it and keep a record, such as a register, of the asbestos present.
Regulation 4 of CAR imposes a duty to manage asbestos on those who, by virtue of a contract or tenancy, have maintenance or repair obligations for non-domestic premises or any means of access thereto or egress from.
Further, in relation to any part of non-domestic premises where there is no such contract or tenancy, a duty will be placed on those parties who have control of that part or any means of access thereto or egress therefrom. A wide range of people may therefore have obligations under Regulation 4 such as owners, occupiers, managing agents, architects and surveyors. Where there is more than one duty holder, the contribution to be made by each duty holder will be determined by the nature and extent of their maintenance and repair obligations (eg through contracts/tenancy obligations).
Responsibilities of the duty holder
The duty to manage the risk from asbestos requires duty holders to:
• conduct a survey of the premises and take reasonable steps to locate possible asbestos-containing materials (ACMs)
• complete a risk assessment on the likelihood of asbestos fibres being released
Duty holders are required to prepare a written asbestos management plan. Information regarding the location and condition of any asbestos must be provided to every person liable to disturb it and to emergency services.
What do directors need to do?
Directors must show that they have done everything they can to keep those who may be at risk of exposure to ACMs safe from harm.
For directors, this also means you must ensure that:
• an inspection is conducted by an accredited contractor where asbestos may be present, which will include identifying the location of possible ACMs and an assessment of the risks posed
• asbestos registers are maintained for the premises for which you have a duty
• you delegate responsibilities for maintaining ACMs to relevant persons within the organisation and inform them of their responsibilities
• there are arrangements in place to provide training to those with responsibilities and those who may undertake work on premises that may contain ACMs
• competent contractors are used to undertake asbestos-related works
• contractors and those working on premises are provided with up-to-date information regarding the whereabouts and condition of ACMs.
Recent asbestos-related fine
Sherwood Homes Limited and its director were fined more than £170,000 in 2019, after failing to ensure the safe removal of asbestos during demolition work. An asbestos survey had revealed the presence of ACMs but the company failed to ensure suitable contractors were used to carry out the necessary removal and demolition work. The company was fined £170,000 and ordered to pay costs of £10,406 under Regulation 4(1) of the Construction (Design and Management) Regulations 2015, while the company director pleaded guilty to breaching s.37 of the Health and Safety at Work, etc Act 1974. He was fined £6500 and ordered to pay costs of £700.