A wood-working company and its director were fined after an HSE inspection uncovered a number of failings and risks around a significant quantity of asbestos found on the premises. During an unannounced visit to the workshop, inspectors found that the asbestos insulating board that lined the building was in very bad condition. Many panels were extensively damaged. In this briefing, Kenneth Cook looks at steps employers should be taking to prevent exposure to asbestos.

Following the inspection, the inspectors served enforcement notices requiring the business to control the risks and get the asbestos-containing materials removed by a licensed contractor.

After the inspection had taken place, further enquiries were carried out and they identified that the company and its director had failed to ensure a suitable and sufficient assessment was carried out to discover whether asbestos was present. They had also failed to take relevant action to control any risks associated with the asbestos materials.

Even more seriously, they fabricated documents to make it look like a licensed contractor was going to remove the materials when no such action was being taken.

The company pleaded guilty to a charge under Regulation 4 of the Control of Asbestos Regulations 2012 and was fined £25,000. The director pleaded guilty to a charge under Section 37 of the Health and Safety at Work etc. Act 1974 and was sentenced to six months’ imprisonment, suspended for 18 months. He was ordered to pay £25,000 costs.

The HSE said that there was plenty of information, advice and guidance on the risks from asbestos available from them. Businesses and individuals who hold a duty under the Regulations have to manage the risks in any non-domestic premises and make sure that a “suitable and sufficient” risk assessment is carried out so that asbestos-containing materials can be identified and any risks they pose can be controlled.

What should employers do?

The risk assessment
The Control of Asbestos Regulations 2012 say that owners or managers of properties must manage the risks from asbestos by undertaking an asbestos risk assessment. This will need an inspection or survey of the property to identify if any asbestos has been used in its construction. If asbestos has been identified, the location and condition of this must be noted. Where materials cannot be positively identified as not containing asbestos, they must be presumed to do so. Contractors who are carrying out work on the premises must be informed of the location of any asbestos or suspected asbestos prior to starting work. Where asbestos is in a poor condition, as was the case in this incident, a competent contractor should be consulted about making it safe.

Regulation 4
The company pleaded guilty to a charge under Regulation 4 of the Control of Asbestos Regulations 2012 but what does this require?

The duty holder must:

• Take reasonable steps to find materials in the premises likely to contain asbestos and to check their condition.

• Presume that materials contain asbestos unless there is strong evidence to suppose that they don’t. Materials such as ceiling tiles, wallboards etc. could contain asbestos.

• Make a written record of the location and condition of asbestos and presumed Asbestos Containing Materials (ACMs) and keep the record up to date.

• Assess the risk of the likelihood of anyone being exposed to these materials either as found, or if worked, during maintenance or demolition.

• Prepare a plan to manage that risk and put it into effect to ensure that:

  • • any material known or presumed to contain asbestos is kept in a good state or repair;
  • • any material that contains or is presumed to contain asbestos is, because of the risks associated with its location or condition, repaired or necessarily removed; and
  • • information on the location and condition of the material is given to anyone potentially at risk.

These procedures were made mandatory in May 2004. A Type 1 visual inspection/survey (as defined by the Regulations) of the premises is needed as a minimum. An asbestos register showing that the premises is asbestos free, or the extent and condition of any asbestos or suspected asbestos found, must be established. Any affected areas must be appropriately marked. This information will be made available to the workforce and to any contractor working on the premises in areas where asbestos or ACMs have been discovered. The asbestos register will be kept on site at all times.

In the event of proposed work affecting asbestos material, a decision to go ahead will only be taken by the owner or manager who will arrange for a licensed contractor to be engaged. Any material in any workplace suspected of containing asbestos should be treated as asbestos until the contrary has been proved by analysis.

Identification of asbestos type is a specialised task and precautions should be taken to prevent inhalation of any type of asbestos dust or fibres.

Where is the asbestos?
Part of the problem surrounding identifying the presence of asbestos is that is has been used in a wide variety of applications including:

• Construction materials;
• Fireproofing;
• Thermal insulation;
• Electrical insulation;
• Sound insulation;
• Decorative plasters;
• Roofing products;
• Internal walls;
• Flooring products;
• Heat-resistant materials;
• Gaskets.

Therefore, if a business has taken over an old property, it is likely that there will be asbestos in some shape or form, unless it has been disposed of beforehand in accordance with the Regulations.

Does a survey need to be carried out of all premises covered by the Regulation?
The Regulations say the business must take 'reasonable steps' to find asbestos in the premises. However, they call for a proportionate approach so this means a substantial survey will only be needed where the risk warrants this. In some cases, a simple walk-through inspection may be suitable.

If the situation changes and major works are planned, for example a major refurbishment of the premises, then a fuller survey for asbestos materials may be needed. Where work that would disturb any unidentified material needed to be carried out then testing for asbestos would need to be undertaken.

The regulation is not just a duty to survey but to manage risk from asbestos. Any survey will only be a step towards managing any asbestos. A poor or inappropriate survey could prove to be worse than no survey at all.

The type of work to be undertaken and the presence of asbestos will determine if a licensed contractor is needed or if the work to be carried out will be unlicensed.

Kenneth Cook is a Health and Safety Advisor with specialist litigation and commercial law firm rradar.