Britannia Hotels found out to its cost that a failure to observe the obligations under regulations to manage asbestos can be a costly mistake. They were fined £160,000 by Canterbury Crown Court for putting both workers and hotel guests at risk of exposure to asbestos during the refurbishment of the Grand Burstin Hotel in Folkestone. This was as a result of failing to ensure a full asbestos assessment had been undertaken before the refurbishment began.
Asbestos is present in many older pubs, restaurants and hotels – which will present a danger to health if not managed correctly. There is a duty on those who manage non-domestic premises to manage asbestos as a result of the Control of Asbestos Regulations 2012.
The obligations for asbestos management
The dutyholder must:
- Ensure that a suitable and sufficient assessment is carried out as to whether there is any asbestos present in the premises or whether there is likely to be any present.
- The assessment must be recorded and regularly reviewed.
- If it is revealed that there is, or is likely to be asbestos present, then the risk must be assessed and an action plan for the management of the asbestos must be drawn up including details of the location and condition of the asbestos.
- The dutyholder may employ a competent person to carry out the assessment but must still be involved itself in the final risk assessment.
- The dutyholder must also provide details of the asbestos, its location and condition, to anyone who is going to work on it or who is likely to disturb it.
Responsibility as the ‘dutyholder’
It is important to check documentation to ascertain who the dutyholder is. Under a tenancy or contract, this is the person with an obligation to maintain or repair non-domestic premises or the means of access to those premises. Where documentation does not specify who has the duty to maintain or repair (or where premises are unoccupied) the duty will fall on whoever has control of the premises, often the owner.
In a tenanted outlet the lease may specify that the tenant has the obligation to maintain or repair the premises – in which case they will be the dutyholder for asbestos purposes. Equally the lease might specify that the duty remains the owner of the building. Where maintenance and repair obligations are shared, for example, in a multi-occupancy building with common parts each party will need to make a contribution to compliance with the requirements or agree to pass the responsibility over to a managing agent.
Where a pub or other outlet is empty with no tenant the landlord will have control of the premises and therefore be the dutyholder with responsibility to manage asbestos in the property.
Purchase from an administrator
It is well worth noting that if you are contemplating purchasing an outlet from an administrator it is rare that any records for the property, for example of asbestos assessments, are available to be passed on to the purchaser. It is important therefore to consider asbestos management at an early stage and certainly before any refurbishment works are commenced. If you carry out a refit at short notice without a proper asbestos survey you will be liable for breach of the Health and Safety at Work Act 1974 and potentially a hefty fine if workers are exposed to asbestos.
The HSE has produced a step by step guide to the duty to manage asbestos. See: http://www.hse.gov.uk/asbestos/managing/index.htm
The HSE has also produced a brief guide to managing asbestos in non-domestic buildings which can be downloaded at http://www.hse.gov.uk/pubns/indg223.htm
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.