New rules governing the management of asbestos-related materials in non-domestic premises come into force tomorrow. Glyn Smith assesses their impact
New rules come into force tomorrow which will require those 'in control' of non-domestic buildings to locate and manage asbestos materials.A survey in August 2003 indicated that the majority of duty holders had no arrangements in place to comply with this law and some were not even aware of the duty. Duty holders are defined as anyone who has control, or a maintenance obligation under a contract of tenancy, in relation to any part of commercial premises.Nine months down the line, and despite best efforts of the Health and Safety Executive (HSE) and the companies who make up their 2000 or so Asbestos Campaign partners, many may still be oblivious to this new responsibilityThe rules will also affect insurers, who are facing spiralling costs of asbestos liability claims. Withdrawal of cover by reinsurers is causing front line liability insurers to question whether they can continue to provide cover. Future predictions suggest that there could be a trend of increasing asbestos ill health up to 10,000 cases per annum mainly among the 500,000 maintenance and repair workers in the UK. Unless there is comprehensive compliance with the new duty to manage asbestos, it is likely that asbestos exposure and ill health will continue. Far better then for the insurance industry to promote and support compliance with the duty and eradicate asbestos disease, rather than face the ongoing dilemma of how to manage the bad claims experience at the 'tail end'. It will take time for duty holders to achieve compliance and even the HSE recognises that not all of them will be in full compliance before the law comes into effect due to the huge number of buildings to survey for asbestos and the limited number of competent surveyors. But, all duty holders should at least be implementing interim measures and be working towards compliance at the earliest practicable date.Insurers might consider promoting and supporting compliance by incorporating the requirement for asbestos management in premises as part of their risk survey before offering or renewing property insurance cover. Furthermore, this could extend to a condition or warranty on the policy stipulating that the policyholder must comply with the new Control of Asbestos at Work Regulations.A further ramification concerns the fact that the insurance industry is not as remote from the source of asbestos ill health as you might think. There is a largely unrecognised link between the potential for the 'commissioning' of asbestos ill health and building repair activity linked to the insurance industry.Annual UK building repair activity linked to damage covered by property insurance is in the order of £2.6bn, one tenth of all UK building maintenance and repair activity. This amounts to considerable potential for worker exposure to asbestos materials.There is ongoing exploration in the insurance industry of how insurers should manage the asbestos risk encountered during building repairs related to damage under a property insurance claim. Claims repair work is often managed by insurers and their own suppliers, for example claim managers such as Cunningham Lindsey UK or management contractors such as Property Solutions. In claims repair work there is certainly a legal obligation on insurers, as well as the suppliers, to ensure work is carried competently and without risk to the health and safety of anyone affected. As part of this responsibility the suppliers ensure (on behalf of the insurers) that asbestos risks are competently managed.While the insurer has no such direct liability where the responsibility for repair of claim related damage is left to the policyholder, the insurer cannot influence management of the asbestos risk (appointment of competent contractor etc) and asbestos exposure may occur if the regulations are not complied with. On the face of it being able to stand back from the resulting liabilities is a good thing for the insurer. However, recent claims where asbestos exposure did occur have shown potential for steeply escalating and wide-ranging liability issues. No matter how far back the insurer stands it might not be far enough to avoid being implicated. After all, if it happened in connection with an insurance claim, aggrieved or injured parties are quick to explore the possibility of insurers liability.The new duty to manage has highlighted further significant benefits of closely managing insurance property claims repairs to control the asbestos risks and at the same time enhance customer service. Insurers could therefore avoid significant ramifications by more direct input into the management of asbestos risks. This is certainly the kind of support that the HSE is seeking from those who are willing to be a partner in its asbestos campaign to ensure the success of the new duty.So who wants a property claim to end up with repair workers being exposed to asbestos fibre (with potentially fatal results) and the insurance customer and their property being contaminated? Certainly not the insurer or the HSE. Everyone needs to work together to ensure that the impact of the regulations serves to significantly reduce the number of asbestos-related diseases that are contracted through the workplace.
What the new rules mean for employers, and maintenance and repair firmsThe new rules are designed to minimise the risk of contracting any of the asbestos-related diseases. Asbestos will, if disturbed, produce microscopic fibres which, if inhaled can cause, asbestosis (hardening of the lung tissue) and lung cancers such as mesothelioma. In the UK, asbestos-related diseases already kill an estimated 3,500 people each year and this figure is expected to continue rising for the next decade.
Requirements of the new regulationsRegulation 4 of The Control of Asbestos at Work Regulations 2002 creates a new legal duty to manage asbestos in non-domestic premises. It requires employers and duty holders - anyone who has control, or a maintenance obligation under a contract of tenancy, in relation to any part of commercial premises - to manage the risk from asbestos. The duty to manage aims to protect workers from exposure to deadly asbestos fibres.
What is neded for compliance In order to comply, employers and duty holders need to:
Risk managementThe Health & Safety Executive (HSE) estimates that up to 500,000 commercial, industrial and public buildings in the UK are likely to contain asbestos materials. It is important to ensure that the asbestos management consultant appointed is accredited by the United Kingdom Accreditation Service (UKAS) for the analysis of asbestos fibres. Any project management work dealing with the removal or encapsulating of asbestos must be carried out under licence from the HSE.Failing to comply with the regulations could lead to heavy fines and even imprisonment while incurring civil and criminal liability. Duty holders need to start work now in order to manage the risk from asbestos and save lives.