Asbestos- Proposed changes to Regulations

In 2006 the UK government introduced the Control of Asbestos Regulations, which set out a number of duties for employers and self-employed persons to identify asbestos and protect employees when carrying out work which may involve contact with substances containing asbestos. A case in Swansea Magistrates Court last month involving a construction firm, J C Irvine Limited, is a stark reminder that employers' responsibilities under these regulations are not to be taken lightly. The defendant in this instance left court with a £12,000 fine and a bill for its opponent's legal fees for failing to conduct an asbestos survey prior to commencing a renovation project and disturbing substances which released asbestos fibres into the air.

In light of this, it is essential that employers keep abreast of forthcoming changes to the legislation. In  February 2011 the European Commission issued a reasoned opinion that the UK had failed to fully implement the EC law which gave rise to the Regulations. The Health and Safety Executive has recently carried out a consultation on the revised Regulations and the UK government plans to issue an entirely new set of regulations in April 2012. This provides a timely opportunity to recap on key duties which currently apply and to become familiar with the proposed revised rules.

The current position
There are currently two categories of work with asbestos:

• Licensed work: This includes work with particular hazardous substances and may only be undertaken by somebody who holds a licence granted by the HSE. It is worth noting that certain types of 'ancillary' work relating to asbestos also require a licence, such as putting up and taking down scaffolding to provide access for licensable work and cleaning/maintaining certain equipment, plant and machinery;

• Non-licensed work: Work with asbestos may not require a licence where employee exposure is sporadic and of low intensity or does not exceed specified control limits.

An employer must not undertake demolition, maintenance, or other work which may expose employees to asbestos until he has carried out a 'suitable and sufficient assessment' (ie an asbestos survey). This will establish the substances involved and the measures which should be taken. Where there is doubt, the employer should  assume the presence of asbestos.
There are a number of duties which apply to both licensed and non-licensed work, such as carrying out risk assessments, using and maintaining control measures and reducing employee exposure to asbestos. Additional duties apply where the work is licensed.

Employers' duties in relation to Licensed work
The  employer must:

• Obtain a licence from the HSE;

• Give written notice to the HSE at least 14 days before commencing the work (the notice is in a standard form and can be obtained from the HSE website);

• Make arrangements to deal with accidents, incidents and emergencies;

• Designate "asbestos areas" and "respirator zones"; and

• Maintain employee health records and carry out medical surveillance.

The Revised Regulations
The European Commission took the view that too many types of lower risk work in the UK were exempt from the following requirements:

• Notification

• Medical Examinations

• Record Keeping

The Commission has proposed a new category of 'Notifiable Non Licensed Work', which will reduce the scope of non-licensed work (with limited effect on the class of licensed work). This will result in a broader range of work becoming notifiable. Employers carrying out such work will be subject to the following requirements, which would usually only apply to licensed work:

• Notification;

• Carrying out medical examinations every three years (as opposed to every two years for licensed work); and

• Maintenance of employee health records.

Employers will be exempt from the other requirements which apply only to licensed work but must comply with the usual duties applying to both existing categories.

HSE inspector Hayley Healey noted in relation to the Irvine decision, "Construction and maintenance workers are in the most at-risk groups from asbestos-related diseases due to the nature of their work." Failure to comply with duties under the regulations can result in severe criminal penalties and significant risks to health and safety, therefore employers are advised to bear in mind the following points:

• When carrying out work in relation premises constructed or renovated prior to 2000, always consider the potential for asbestos contamination;

• Where there is doubt, assume the presence of asbestos;

• Ensure that the asbestos survey and its findings are fully available and examined prior to carrying out work;

• Look out for changes to the proposals and the date that these will come into force (currently expected to be April 2012).

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.