Building owner duties
The ‘duty to manage’ asbestos in the Control of Asbestos Regulations 2012 is aimed at those who are responsible for the maintenance and repair of commercial and industrial properties, and for protecting those who work in these buildings. Contractors are entitled, by law, to know about any asbestos they may encounter, in any premises, before they start work.
Duty to manage asbestos in buildings
In r.4 of the 2012 Regulations the term ‘duty holder’ means:
“(a) anyone who has, by virtue of a contract or tenancy, any obligation in relation to the maintenance or repair of non-domestic premises, or any means of access or egress to or from those premises; or
(b) in relation to any part of non-domestic premises where there is no such contract or tenancy, anyone who has, to any extent, control of that part of those non-domestic premises or any means of access or egress to or from those premises.”
The HSE’s Approved Code of Practice ‘Managing and Working with Asbestos ‘(L143) provides further guidance, where it might still be unclear who has this duty.
Under r.4, the duty holder must identify and manage the risk from the presence of asbestos on the premises. The duty holder must ensure a written plan shows where any asbestos containing materials (ACMs) are located, their condition, and how they will be managed to prevent exposure to asbestos, to employees, contractors or other workers who may carry out work that could disturb ACMs. This plan must be communicated to those who may be affected, and carried out. The duty holder must also review the plan regularly, update it if circumstances change, and inform those who may be affected.
Responsibility for communicating the management plan (including the location of asbestos) is clearly on the duty holder. Similarly, the duty holder must be able to confirm if there is no risk of encountering ACMs (e.g. through the results of an asbestos survey or due to the building being built after 2000).
Whilst the onus is on the duty holder managing the premises to provide contractors with the necessary information, contractors are advised to make reasonable enquiries (in writing) if an asbestos management plan is not forthcoming, or if it is questionable. (Note: this will also provide evidence of contractor diligence.) If the plan is not forthcoming, the duty holder can be reminded that they have a legal requirement to have such a plan, and to provide information on the location and condition of ACMs to anyone who is liable to disturb it. A contractor must not draw up such a plan for itself or the duty holder before staring work, if it does not know the location of all ACMs (the presence of asbestos may not be easy to identify).
If a plan is still not forthcoming, then the contractor may draw its own conclusions about the duty holder’s approach to health and safety etc. This conclusion may well involve a decision not to proceed with the work. However if a contractor still chooses to proceed with the work, it should be planned on the entirely precautionary basis that asbestos is likely to be present where work will be carried out. Proper occupational health precautions must be in place to fully protect anyone who might accidentally encounter asbestos.