St Austell was fined £5,000 plus costs (totalling £11,000) recently for failure to carry out a suitable and sufficient assessment of the asbestos in a pub due to be refurbished.
Nor did St Austell pass on details of the asbestos to the contractor appointed to carry out the work.
In any pub, restaurant or hotel there may be asbestos in the building which will present a danger to health if not managed correctly. As the owner of non-domestic property you have a duty to manage asbestos. As St Austell Brewery found out, a failure to observe the obligations under the Regulations can be a costly mistake.
The duty to manage asbestos is placed on those who manage non-domestic premises and is contained in the Control of Asbestos Regulations 2012. These introduced fairly limited changes in April 2012 to the 2006 Regulations, to ensure UK compliance with the EU Directive, and in fact the provisions relating to the duty to manage asbestos remain the same as previously.
This applies to:
- Every person who has, under a tenancy or contract, an obligation to maintain or repair non-domestic premises or any means of access or egress to or from those premises; or
- In relation to any part of those premises where there is no contract or tenancy, every person who has control of that part of the premises or any means of access or egress to or from those premises.
It is important to check documentation to ascertain who the dutyholder is. 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 you may have specified in the lease that your tenant has the obligation to maintain or repair the premises in which case he will be the dutyholder for asbestos purposes. Equally the lease might specify that the duty remains with you as 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.
In the St Austell case the brewery was the “dutyholder” as the pub in question was closed and the brewery had control of the premises. The brewery employed a contractor to carry out the refurbishment works at the pub.
What is the duty?
Under the Regulations the dutyholder is required to 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 asbestos present, or is likely to be, 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.
St Austell should have carried out an assessment of the asbestos and passed on details to the contractor who was to carry out the work. The contractor was also in breach of its duty as an employer for exposing its workmen to asbestos without having carried out a sufficient assessment of the asbestos exposure risk.
The HSE has produced a step by step guide to the duty to manage asbestos.
The HSE has also produced a brief guide to managing asbestos in non-domestic buildings.
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.