Asbestos was used extensively in UK commercial and residential buildings in the 20th century, primarily for insulation, flooring and roofing, as well as being sprayed on ceilings and walls. On health grounds, the UK banned the use and import of all asbestos in November 1999.  

The House of Commons DWP Select Committee recently conducted an inquiry into the Health and Safety Executive’s (HSE) approach to asbestos management. The inquiry noted there is approximately six million tonnes of asbestos in the UK, much of which can be found in over 1.5 million buildings. Given the volume of asbestos still present in UK buildings, the management of asbestos continues to pose a significant problem for many homeowners, businesses and other institutions.  

What are the dangers of asbestos?

Exposure to asbestos dust can cause a number of diseases, including mesothelioma, a form of lung cancer that is fatal. There is a lengthy latency period from exposure to onset of symptoms, estimated by the HSE to be between 15 and 60 years. As a result, there are estimated to be more than 5,000 asbestos-related deaths per year in the UK. The HSE has assessed that the UK is only just past the peak of annual asbestos related deaths, and expects there will be a gradual tail off over many years. 

Given the lengthy latency period, the Control of Asbestos Regulations 2012 (the “2012 Regulations”) stipulates lengthy retention periods for documents. Regulation 22 notes that for licensable work with asbestos a record is kept available in a suitable form for at least 40 years from the date of the last entry made in it.  

The recent case of Nicola Watt & Others v Lend Lease Construction (Europe) Limited [2022] CSOH 23 assessed working conditions from 1963. That was nearly 60 years before the matter came to Court. In this claim, the defender had not retained any documentary evidence, so the key evidence was in the late Mr Watt’s statement setting out working conditions. Liability was not established in this claim on account of:

• the low level of cumulative exposure;
• the work was in an outdoor environment; and 
• the date the work was carried out.

The Court assessed that prior to 1965 it was unreasonable to expect an employer to be aware of the risks of such low level asbestos dust exposure. Had the events taken place post-1965, liability may well have been established. 
Regulation 22 sets a minimum 40-year period for retention of documents. Given cases like Watt and the fact the HSE notes there can be a latency period of 15 to 60 years from exposure, any business may want to consider an even more cautious approach to document retention. Documents from as many as 60 years ago could be of relevance. Therefore, it would seem prudent for businesses that work with asbestos to set their document retention period accordingly. 

What are the challenges of managing asbestos?

The UK’s Work and Pensions Committee recently proposed a 40-year timeline to complete the regulated removal of all long-standing legacy asbestos from public and commercial buildings.

The proposed timeframe for schools is much tighter. Founded in 2010, the Joint Union Asbestos Committee (JUAC) is a non-party political group of trade unions (including the National Association of Head Teachers) with a common interest in making schools and colleges safe from the dangers of asbestos. The JUAC is campaigning for the phased removal of asbestos from schools to be completed no later than 2028.This ambitious target was set following a 2018 Department for Education Survey in which 87% of respondent schools confirmed they had asbestos in at least one location on their site. However, more than 20% of schools failed to respond to the survey at all. The lack of response resulted in 676 reports to the HSE for a failure to show compliance.  

There is also concern that some schools, relying on historical surveys, may be under the mistaken impression that there is no asbestos on site. In 2021 there were reports of a pupil kicking a hole in a wall at a school in Conwy, Wales. When the hole was assessed this exposed asbestos, which had not previously been noted in earlier inspections. This shows the value in considering whether it may be prudent to conduct a further full inspection, especially when dealing with an older building.

What are the consequences of conducting work without due care?

Given how toxic asbestos can be, the consequences for failing to follow guidance are severe. Two business owners recently took over a £2.4 million contract in Sunderland to transform Joplings department store into student accommodation. The HSE found a number of employees had been exposed to the risk of asbestos and subsequently prosecuted the directors.

The directors in question were handed suspended prison sentences, ordered to complete community service and had a significant cost order made against them.

Where can you seek guidance?

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) places duties on employers, the self-employed and people in control of work premises (the responsible person) to report certain serious workplace accidents, occupational diseases and specified dangerous occurrences (near misses). Exposure to asbestos is reportable under RIDDOR and care should be taken that documents are retained for at least 40 years, rather than being destroyed in accordance with a company’s standard document retention policy.

The Control of Asbestos Regulations 2012 sets out a detailed Approved Code of Practice (ACOP) and guidance text for employers about work which disturbs, or is likely to disturb, asbestos. 

If you require any guidance on your obligations under the legislation please contact Andrew Winton, Senior Associate in our commercial disputes team and a member of our Workplace, Risk and Regulation Group, or Kevin Clancy, Partner and Head of the Workplace, Risk and Regulation Group.