Commercial Property News and Comment
The new duty to manage asbestos. Are you fected?
Asbestos is the greatest single cause of work related deaths in the UK, and is thought to kill up to 3,000 people a year in the UK. The Control of Asbestos at Work Regulations 2002 were introduced to address the failure of the health and safety regime to curtail the increasing numbers of people suffering from asbestos related diseases. A key initiative in the Regulations is the introduction of an important new duty to actively manage asbestos in nondomestic premises.
The new duty will come into force on 21st of May 2004 and it is essential that everyone who is involved with non-domestic premises considers their obligations under the Regulations now and takes all necessary steps to comply with their obligations.
Who is subject to the new duty?
The new duty to manage asbestos applies with respect to non-domestic premises, and any means of access to or from such premises. This will include commercial and industrial premises, as well as communal areas of private dwellings. The Regulations place the new duty on the duty holder. The duty holder is either:
(a) A person who has any obligation in relation to the maintenance or repair of non-domestic premises under a contract or tenancy, including access to and from such premises.
(b) Where there is no relevant contract or tenancy, any person who has any control of the non-domestic premises, including access to or from such premises.
The definition of duty holder is potentially very wide. Not only are owners, occupiers, landlords and tenants potentially duty holders, but the definition may also catch sublessors, managing agents and facilities managers. If you are not a duty holder under the Regulations, you are required to co-operate with the duty holder to enable the duty holder to comply with his or her duties.
What is the duty holder required to do?
Undertake an asbestos assessment:
The duty holder is required to undertake a suitable and sufficient assessment as to whether asbestos is or is liable to be present in the premises. In practice, the duty holder is under an obligation to do all that is reasonably possible in the circumstances. The duty holder must record and where necessary review its asbestos assessment.
If asbestos is present or assumed:
If the asbestos assessment indicates that either asbestos is present in the building, or it is presumed that asbestos is present, then the duty holder must determine the risk posed by that asbestos and prepare a written plan.
There is a positive obligation on the duty holder to implement the measures specified in its written plan, and to record the measures that it has implemented.
If a duty holder fails to fulfil its obligations regarding asbestos, then it may be subject to prosecution under the Health and Safety at Work Act 1974, a third party may take civil proceedings against it, and it may have breached its obligations under a contract or lease. It should be noted that if a company is prosecuted in connection with a breach of the Health and Safety at Work Act 1974, directors and managers of that company may also be prosecuted in connection with that breach.
Delegation of duties
It is important to note that a duty holder cannot delegate its responsibilities under the Regulations. Therefore, if you are a duty holder you should pay careful attention to who you engage to undertake your asbestos assessments, and who you delegate responsibility to for preparing and reviewing your written plan.
Source: S.J Berwin