Legal advice: What's the deal with asbestos?
As with many buildings, asbestos is common in pubs. It can be in almost any part of the building, from the floor tiles to the roofing material, and very often in the cellar.
It is important that if you have responsibility for the repair and maintenance of your pub you should be aware of your obligations.
The Control of Asbestos at Work Regulations 2002 introduced an obligation to manage asbestos risk in non-domestic premises some time ago. Since then new legislation, in the form of the control of Asbestos Regulations 2006, has come into force. The regulations took effect on November 13, 2006 and you may be wondering whether they have any further impact on the way in which you need to deal with asbestos.
The short answer, you will be relieved to hear, is that they do not, over and above complying with existing obligations.
Current obligations
All employers have a duty to protect staff from exposure to asbestos. In addition, the Control of Asbestos at Work Regulations 2002 introduced an obligation to manage asbestos risk in non-domestic premises - which includes pubs and bars. Areas used solely as domestic dwellings are exempt but common parts are still covered, as are any rooms that you let for bed and breakfast.
Obligations are placed on duty holders who must assess whether asbestos is present in a building for which they are responsible and locate where it is.
They must then assess the risk from the asbestos and following this put in place written action plans and systems to manage the risk. This may, but need not necessarily, include removal of the asbestos. Once produced, the plan needs to be reviewed and implemented.
Of particular importance is the need to ensure that information on the location and condition of the asbestos is given to anyone who could come into contact with it - for example plumbers, electricians and other contractors.
Who is a duty holder?
The owner, occupier or manager responsible for the maintenance and repair of the premises has the duty to comply with the legislation. It is possible that there is more than one duty holder.
An analysis by the British Beer & Pub Association suggests the duty holder is determined by the type of outlets:
- Freehouse: the licensee
- Managed house: the pub company that owns the pub. However, day-to-day management responsibility may be delegated to the licensee if set out in a clearly defined policy
- Tenanted pub: this depends on the terms of the lease, so check this carefully and talk to your landlord if in any doubt as to who is responsible.
It is important to note that duties apply even when premises are vacant.
The cost of non-compliance
A survey carried out at the end of 2005 concluded that while many pubs had identified the location of asbestos, at that point a great number did not have adequate asbestos management plans in place and were not aware of their ongoing legal obligations. This is despite the fact that it
is a criminal offence not to maintain a proper plan, punishable by an unlimited fine and up to two years in prison.
New regulations
The latest legislation, in the form of the Control of Asbestos Regulations 2006, has now replaced the 2002 Regulations, as well as revoking and re-enacting the Asbestos (Licensing) Regulations 1992 and the Asbestos (Prohibitions) Regulations 1992. However, the key point is that the new regulations do not make any changes to Regulation 4 of the 2002 Regulations - which deals with the duty to manage asbestos in non-domestic premises.
Essentially, the changes that are introduced by the 2006 Regulations are to provide greater protection for maintenance workers. The new draft Code of Practice gives detailed guidance for employers of those workers who will be exposed to asbestos.
For more information about compliance, see the Health & Safety Executive website: www.hse.gov.uk
