14th February 2017
Who’s responsible for asbestos management?
A case heard in December 2016 illustrates a common dilemma about asbestos management in a building – deciding who is responsible. As this article shows, having a prolonged argument about this may well land you in court.
In 2007 Connect Packaging Ltd (CP) moved into leased premises in Essex. At the time, managers identified that there was asbestos containing material (ACM) in the building. No action was taken to remove or manage this hazard.
The company moved out in 2009 and sub-let the unit to Creo Retail Marketing LTD (CRM). In 2014 CRM was advised by its new health and safety officer to commission an asbestos survey. This confirmed that poor condition ACM was indeed present.
It was decided that the ACM’s should be removed, but CRM and CP would not agree on who should pay for this work and this caused a considerable delay.
An employee working at the site was so alarmed at the ongoing risk that he contacted the HSE. The HSE sent in specialists who identified widespread contamination throughout the site. The presence of fibres in the air also confirmed that employees were very likely to have breathed in the deadly asbestos fibres.
Who should have taken action?
Under The Control of Asbestos Regulations 2012, the ‘dutyholder’ is responsible for identifying ACM’s and managing their associated risks. A ‘dutyholder’ is the individual or organisation with clear responsibility for the maintenance or repair of non-domestic properties.
In this case, when CRM acquired the lease it took responsibility for maintenance and repair, but in fact it was CP who was still involved in carrying out the maintenance work on a day-to-day basis. The court viewed that they shared this duty and as a result they were both fined, with CP, £65,000 and CRM, £150,000.
What should I do?
If you lease premises and the responsibilities are unclear, check your tenancy agreement. It should tell you who is responsible for the maintenance and repair in general, and therefore who is the ‘dutyholder’ under the regulations.
If someone else is a ‘dutyholder’ but they refuse to fulfil their obligations, then it’s time for some difficult decisions. Ultimately you’re still responsible for the safety of your staff and visitors. So using legal channels to recoup costs, or involving a regulator to ensure action is taken by those responsible, may be the only options available to you.
A lot of these difficulties can easily be avoided. Prior to taking on new premises you should arrange for some due diligence checks to be undertaken. Where the building has been constructed prior to 2000 this should involve a review of the asbestos survey.
Lighthouse employs a number of asbestos qualified consultants and would be happy to assist clients with any queries – call us on 0845 4591724.