Zoe Cooper is of counsel and Gregor Woods is a partner at law firm CMS
On 15 January, the Health and Safety Executive (HSE) launched its ‘Asbestos – Your Duty’ campaign, with the aim of improving understanding of what the legal duty to manage asbestos involves.
Even though its use in building material ceased in 1999, asbestos remains the greatest cause of work-related deaths in the UK, with around 5,000 people dying every year from asbestos-related disease. The HSE is clearly concerned that there is inadequate appreciation of what the law requires of those responsible for buildings to protect the health of users of those premises and avoid prosecution.
“Non-compliance is a criminal offence”
Those worried about the risks posed by exposure to asbestos in buildings have been gaining publicity. The Times’ ‘Act Now on Asbestos’ campaign, which focuses on pupils’ and teachers’ exposure to it in schools, is one prominent voice in the campaign to shift national strategy from the current ‘maintain in situ’ approach to a programme of systematic asbestos removal.
Cases are increasingly reported of families bringing claims for damages after ex-teachers have developed mesothelioma following exposure to asbestos during their employment. For example, in 2023, the family of Hazel Healey brought a claim against Rochdale Borough Council, which admitted liability and settled the claim. In a similar case, the family of Julia Browne brought a successful claim against Surrey County Council.
The removal of asbestos was a key recommendation of the House of Commons Work and Pensions Committee (WPC) in its April 2022 report, following its inquiry into the current UK asbestos-management strategy. A 40-year removal programme was recommended in relation to non-domestic buildings, only to be rejected by the government in July that year on the basis that removal would, it was felt, create a greater risk of exposure.
This has, however, not ended the debate on how best to manage our asbestos legacy, fuelled by concerns about the state of asbestos in many public buildings following years of austerity and a steady stream of mesothelioma claims from those with no history of working with asbestos. The WPC is clearly of the view that little enough has been done and believes that the HSE has so far failed to meet its brief.
The scale of the challenge
Thanks to a report produced jointly by the Asbestos Testing and Consultancy Association and the National Organisation of Asbestos Consultants in November 2022, prepared in response to the WPC inquiry, there is now a rather better understanding of the scale of the problem. The survey revealed that:
- Of the 128,761 buildings inspected, 100,660 (78 per cent) were found to contain asbestos
- Within those buildings, 710,443 items of asbestos were found
- Out of those items of asbestos 507,612 (71 per cent) were recorded as having some level of damage
- Of the damaged items, 24 per cent would be classed as ‘licensable’ work and require a specialist contractor
The report concluded that a high proportion of asbestos materials in UK buildings presented a potential risk to public health, and that asbestos management was failing in a significant proportion of those premises. It called for further development to expand the data set and to standardise how such data is collected before the development of an effective national database, which the authors considered necessary to inform UK policy.
Responsibilities of duty holders
The management of asbestos in non-domestic buildings is governed by the Control of Asbestos Regulations 2012. Regulation 4 obliges the ‘duty holder’ (anyone with an obligation to maintain or repair non-domestic premises) to manage the risk from asbestos in non-domestic premises by a series of mandatory steps, including undertaking an assessment to determine whether asbestos is present and instigating appropriate steps to ensure asbestos is properly maintained.
Non-compliance is a criminal offence. Those with a responsibility for the management and maintenance of premises must familiarise themselves with the regulations. Similarly, employers must be able to demonstrate that there is a suitable risk-management plan in place. The HSE website is an excellent resource, with updated information, new templates to assist in asbestos management and explanatory videos.
Asbestos is not an issue showing any sign of fading. Quite to the contrary.