Publicans' legal responsibility over asbestos
Legislation brings renewed concerns over asbestos
by Keith Miller of thePublican.com's legal team of experts from London solicitors Joelson Wilson
If your pub is known to contain asbestos it's odds on that you will be entering one of the most expensive aspects of British legislation.
If you own, occupy, manage or have responsibilities for premises which may contain asbestos, you will either have:
- a legal duty to manage the risk from this material
- a duty to co-operate with whoever manages that risk.
That's according to the Health and Safety Executive (HSE) in their recently-issued guidance notes published following the Control of Asbestos at Work Regulations, which came into effect on November 21 2002.
Owners, tenants or managers of non-domestic premises such as pubs will have the responsibility.
The regulations imposing the duties do not take effect until May 21 2004, but the HSE advises those who will be affected to start addressing the task.
It suggests checking your current arrangements for managing asbestos and taking extreme care during maintenance work (assume that materials contain asbestos until you know whether they do or not).
Preferably have the premises inspected for asbestos - in particular looking for serious damage or disturbance which should be immediately remedied.
The aim is to minimise the risk to health of those employees and other people who work or spend time in the premises.
Why is asbestos a problem?
The authorities say that if asbestos fibres are released into the air and breathed in, they can cause disease, mainly cancers of the lungs and chest lining. Such diseases currently kill up to 3,000 people a year in Great Britain.
Where is asbestos found?
Blue and brown asbestos were banned for building purposes in 1985, but are still present in some buildings.
White asbestos (chrysotile) is less hazardous but is still judged dangerous and is consequently now being banned.
Asbestos has traditionally been used for various purposes, such as insulation, lagging, fire-proofing, lining and tiling - even gutters, roofing materials and floor tiles may contain it.
What will you have to do?
Employers already have a legal duty to prevent their employees being exposed to asbestos, or at least to reduce the risk of exposure as much as possible.
The new regulations will require you to "manage the risk".
Full details can be obtained by logging on to the HSE website: www.hse.gov.uk-asbestos which also gives details of the specialist asbestos surveyors who have been accredited by the HSE.
There are rules, for example, as to what records should be kept - in some cases for up to 40 years - about the presence of asbestos and what removal work has been carried out.
Property aspects
There is already legislation (the Defective Premises Act 1972) which makes the party to a lease who is responsible for repairs liable to any person entering the property for injury or damage caused by a defect in the premises.
However, most leases include a clause obliging the tenant to observe all statutory requirements, so, if the landlord is responsible for repairs, the new regulations may give rise to legal arguments as to who has the primary responsibility.
The insurance angle
As far as a tenant is concerned, if the lease makes the landlord responsible for insuring the building, the tenant ought to tell the landlord if asbestos is discovered so that the landlord can notify its insurers. If the tenant insures, then he should do likewise and notify the insurers.
Apart from the property angle, there is the employer's liability aspect. Employees may sue their employer if they have contracted asbestos-related diseases and the employer has not taken steps to minimise the risk in the workplace.
The bottom line
Asbestos may only be removed by contractors approved by the HSE. The cost to employers of the clean-up has been estimated at more than £1.5bn and it has been suggested that the regulations are "the most expensive piece of legislation in British history".
