Asbestos in Your Building: What the Law Expects from Your Business

Asbestos is not a problem from the past. It is still present in thousands of UK buildings, and for many businesses the biggest risk is not knowing where it is, what condition it is in, or who may disturb it.

Under the Control of Asbestos Regulations 2012, businesses responsible for maintenance or repair of non-domestic premises have a legal duty to manage asbestos. That duty also applies to the common parts of domestic premises, such as communal corridors, stairwells, lift shafts, roof spaces, boiler rooms and shared service areas. The dutyholder may be the owner, landlord, tenant, managing agent or another party with control of maintenance and repair responsibilities. In some cases, the duty is shared.

The key point is simple: asbestos must be actively managed, not ignored.

Why asbestos management matters

Asbestos is dangerous when fibres are released into the air and breathed in. Materials in good condition and left undisturbed may present negligible risk, but damaged asbestos-containing materials, or asbestos disturbed during maintenance, refurbishment or demolition work, can expose workers and building occupants. HSE guidance makes clear that buildings completed before 2000 should be presumed to contain asbestos unless there is strong evidence that they do not.

This is why businesses must not rely on guesswork, old building knowledge, or “we have never had a problem before”. The law expects a structured system.

1. Identify who the dutyholder is

The first step is to establish who is legally responsible. The dutyholder is normally the person or organisation with responsibility for maintenance or repair of the premises. This may be set out in a lease, tenancy agreement, facilities management contract or other formal arrangement. Where no agreement exists, the person in control of the premises, or part of the premises, is likely to hold the duty.

A common compliance failure is assuming that “the landlord deals with asbestos” or “the tenant deals with maintenance”. The paperwork must be checked. If responsibilities are shared, the parties must co-operate so the risk is properly managed.

2. Find out whether asbestos is present

A business must take reasonable steps to find out whether asbestos is present or liable to be present. This means checking building plans, maintenance records, previous surveys and other available information, then inspecting accessible parts of the premises. Where asbestos cannot be ruled out, materials must be presumed to contain asbestos unless there is strong evidence to the contrary.

For normal occupation and routine maintenance, this will usually require a management survey. Before refurbishment or demolition, a more intrusive refurbishment and demolition survey is required for the areas affected by the work. HSE guidance is clear that a management survey is not enough for work that opens up the structure or disturbs hidden areas.

3. Create and maintain an asbestos register

The findings must be recorded. This is usually known as the asbestos register. It should identify where asbestos-containing materials are present or presumed to be present, what type or form they are, their extent, and their condition. It should also identify any areas that were not accessed and must therefore be treated with caution.

The register must not sit forgotten in a folder. It must be available to those who plan, authorise or carry out work that could disturb the building fabric. Contractors need this information early enough to plan the job safely, not when they arrive on site with tools in hand.

4. Assess the risk, not just the presence of asbestos

Finding asbestos is only part of compliance. The dutyholder must assess the risk from it.

That means considering the condition of the material, whether it is likely to be disturbed, how accessible it is, how many people may be affected, and whether maintenance, refurbishment or other work is likely in that area. The assessment must then determine whether the material can be safely managed in place or whether it needs repair, protection, enclosure, sealing or removal.

A blanket “survey completed” approach is not enough. The law requires an assessment that leads to practical control measures.

5. Prepare a written asbestos management plan

Where asbestos is present or presumed to be present, the business must prepare a written management plan. This plan must identify the affected parts of the premises and set out the measures needed to manage the risk. It must include arrangements for monitoring condition, maintaining or safely removing asbestos where necessary, and giving information about location and condition to anyone liable to disturb it.

A compliant plan should clearly state:

• who is responsible for managing asbestos;

• where the asbestos register is kept and how it is accessed;

• how work on the fabric of the building is controlled;

• how contractors are checked and informed;

• what happens if asbestos is damaged or accidentally disturbed;

• how asbestos left in place is monitored;

• when the plan will be reviewed.

HSE guidance states that work on the fabric of the building should not start unless the relevant asbestos register information has been checked, understood and acted on.

6. Manage asbestos left in place

Asbestos does not always have to be removed. In fact, if asbestos-containing material is in good condition, well protected and unlikely to be disturbed, it is usually safer to leave it in place and manage it. But “leave it alone” is only acceptable when supported by a register, risk assessment, communication system and inspection regime.

Damaged asbestos, asbestos in vulnerable locations, or asbestos likely to be disturbed by routine work must be given high priority. Depending on the circumstances, it may need to be repaired, sealed, enclosed, protected or removed by trained and competent personnel.

7. Train the people who may disturb it

Employees whose work could foreseeably disturb the fabric of a building must receive asbestos awareness training. This includes maintenance staff, electricians, plumbers, construction workers, decorators, roofers, IT/data installers, alarm installers, surveyors and others who may work on or influence work on the building.

Awareness training does not make someone competent to work on asbestos. It helps them avoid disturbing asbestos. Where planned work will disturb asbestos-containing materials, additional task-specific training, instruction and controls are required.

8. Use licensed or competent contractors where required

Some asbestos work is higher risk and must be carried out by an HSE-licensed asbestos contractor. The Control of Asbestos Regulations require employers to hold a licence before undertaking licensable work with asbestos.

Other asbestos work may be non-licensed or notifiable non-licensed work, but it still requires proper risk assessment, planning, controls, training, records and, where applicable, notification and medical surveillance. Businesses must not assume that “non-licensed” means “low standard” or “anyone can do it”.

9. Review, monitor and keep records up to date

Asbestos compliance is an ongoing duty. The management plan, register and drawings should be reviewed at least every 12 months and sooner if circumstances change, such as building use, occupancy, refurbishment plans, damage, repair or removal of asbestos-containing materials.

The condition of asbestos left in place must be inspected periodically. The frequency will depend on the material, its location, the building activity and the likelihood of damage. The business must also check that the management arrangements are working and that people understand what they must do.

The bottom line

Legal compliance is not achieved by having an old asbestos survey in a drawer.

A compliant business must know who the dutyholder is, identify or presume asbestos, record it, assess the risk, prepare and implement a written management plan, inform those who may disturb it, train relevant staff, control contractors, and keep the whole system under review.

Asbestos management is not paperwork for paperwork’s sake. It is a legal duty designed to stop workers, contractors, visitors and occupants being exposed to a preventable cancer risk.

If your asbestos register is out of date, your contractors are not being given the information before work starts, or your management plan has not been reviewed in the last 12 months, your arrangements need attention.