Inquiry launched into how the presence of asbestos in buildings is managed

The inquiry seeks views from those who might be affected by changes to legislation or guidance issued in respect of asbestos management. The call for evidence closes on Friday 17 September 2021.

Context

Despite the importation, supply and use of the material being banned in the UK since 1999, asbestos remains the largest single cause of work-related fatalities, with more than 5,000 deaths each year from diseases including mesothelioma, lung cancer and asbestosis.

The Committee raised concerns last year with the government about the UK’s policy on managing asbestos in buildings, following the publication of a report by think tank Respublica. In response, the Minister for Employment confirmed that the HSE would be conducting an internal review of the effectiveness of the regulations for managing asbestos. The results of the inquiry will feed into the HSE’s own review.

The report by Respublica highlighted a number of issues for the inquiry to consider and recommended amending guidance and legislation to undertake the following as part of the “best practicable technique”:

• Routinely test for harmful airborne asbestos fibres in buildings and adopt modern microscopy techniques for this purpose.
• Follow France, Germany, and the Netherlands in adopting a safe limit for air testing.
• Establish a national database recording the quantity, condition and type of asbestos in buildings, as Poland has done.
• Use modern technology - QR codes for signage and smart phone apps - to store asbestos surveys centrally and make them available online to users of public buildings.
• Embark on a risk assessment process and phased removal of the most harmful asbestos in line with other countries such as Belgium, the Netherlands, Italy and Poland.

What next?

The inquiry is seeking views on the following questions:

1. What are the current risks posed by asbestos in the workplace? Which groups of workers are most at risk?
2. How effective is the current legislative and regulatory framework for the management of asbestos?
3. How does the HSE’s approach to managing asbestos compare to the approach taken in other countries? Are there lessons that the UK could learn from best practice elsewhere?
4. How does the HSE measure and report its progress in mitigating the risks of asbestos?
5. Does the HSE keep adequate records of asbestos in public buildings?
6. Is the HSE making best use of available technology and systems to monitor the safety of asbestos which remains in buildings?
7. Does the HSE commit adequate resources to asbestos management in line with the level of risk?
8. How robust is the available data about the risks and impact of asbestos in the workplace? What gaps in evidence need to be filled?
9. Is the HSE drawing on a wide body of international and national regulatory and industry expertise to inform its approach to the management of asbestos safety in buildings?
10. How effectively does the HSE engage with external stakeholders and experts about its approach to the regulation of asbestos?

Responses are invited until 17 September 2021, following which the inquiry will make its findings and publish its report. This is likely to inform the HSE’s research and post-implementation review of the Control of Asbestos Regulations 2012.

Reactions so far

Any changes to asbestos guidance and legislation are likely to have significant consequences for duty holders when managing asbestos on their premises. In terms of health and safety issues, greater regulation will place more onus on organisations to demonstrate that they have done all that is ‘reasonably practicable’ to avert the risk of exposure to asbestos. It is important to note that organisations do not have to cause actual harm in order to fall foul of health and safety legislation; the mere creation of a risk of harm is sufficient for enforcement action to be taken by the HSE, including a prosecution.

Any proposed change requires careful consideration so that a balance is struck between safeguarding people from the exposure to asbestos, whilst at the same time ensuring the guidance and legislation remains achievable for duty holders.

The presence of asbestos in public buildings is a recognised cause of concern due to the potential risks of exposure to such a significant proportion of the population. Therefore, local authorities are likely to welcome regulatory reform to address concerns arising from the legacy of asbestos in public buildings; inevitably however, it is likely that questions will be raised about the funding and resourcing that would be required to enable local authorities to meet new standards. It is not known whether the Committee will address challenges that will face local authorities and/or whether the Committee will make recommendations to ensure that regulations are achievable in the timescales set.

In terms of impact on the construction industry, the presence of about six million tons of asbestos in approximately 1.5 million UK buildings is a significant problem and poses a particular risk in demolition and renovation projects where the asbestos is disturbed. The Construction (Design and Management) Regulations 2015 (CDM 2015) place the responsibility on the individual or organisation carrying out a construction project as part of a business, to ensure appropriate arrangements are in place to manage asbestos during the pre-construction and construction phases of the project.

However, under the Control of Asbestos Regulations 2012, there is no obligation to remove the asbestos from non-domestic premises. It might be preferable to not disturb it if it is not posing an immediate threat.

Where the asbestos will be disturbed, a refurbishment and demolition survey is required which ensures that (1) nobody will be harmed by work on asbestos-containing materials and (2) that work will be done by the right contractor in the correct way.

Whilst the presence and removal of asbestos is costly in development and renovation projects, managing it appropriately, both at the pre-construction and construction phase, not only saves lives but also minimises the potential for unexpected project delays, reputational damage, costly litigation and significant fines and criminal prosecution for breach of the CDM 2015 regulations. Effective asbestos management will be of even greater importance as more stringent regulation is likely to be imposed on key players in construction projects.

Read other items in Health, Safety and Environment Brief - September 2021

Read other items in Personal Injury Brief - September 2021

Read other items in Occupational Disease Brief - October 2021

Read other items in Construction and Engineering Brief - October 2021