The new Control of Asbestos Regulations (CAR 2012) came into force on 6 April, six years on from the original version.
They coincide with the publication of the Great British Asbestos Survey (see box), which demonstrates an alarming lack of awareness of their legal responsibilities among both duty holders – those who own or operate buildings which contain asbestos – and companies like contractors whose employees may be exposed to the material.
That suggests compliance with CAR 2012 is not going to be high.
Like its predecessor, the new regulations apply to work involving removal, repair or disturbance of asbestos, and has implications for anyone involved in the maintenance or repair of buildings.
Failure to comply constitutes a criminal offence under the Health and Safety at Work etc. Act 1974, attracting a penalty of up to two years’ imprisonment and an unlimited fine.
CAR 2012 has widened statutory obligations for contractors, tenants and property owners, as Laura Phoenix, an associate and asbestos specialist at law firm Thomas Eggar, explains.
“The new regulations follow the European Commission’s opinion that previous UK legislation failed to fully implement the EU Directive for the protection of workers,” she says.
This means there are new duties for employers carrying out certain types of low risk, short duration work, including:
- Notifying the work to the relevant enforcing authority.
- Carrying out medical examinations on workers - there is a transitional period and relevant low risk workers need to have their first medical examination by 30 April 2015.
- Maintaining a register for each worker of the nature and duration of the work they have undertaken with asbestos.
“The regulations also create a new category of notifiable non-licensed work,” Phoenix explains. “Work has to be licensed unless it is only sporadic and of low intensity and it can be demonstrated that the control limit (i.e. 0.1 fibres per cubic centimetre of air, measured over a continuous 4 hour period) has not been reached.”
However, she continues, unlicensed work must still be notified to the relevant authority unless it is limited to:
- Non-continuous maintenance activities in which only non-friable materials are handled.
- Removal without deterioration of non-degraded materials.
- Encapsulation or sealing of materials in good condition.
- Air monitoring, control and sampling.
Besides these practical implications, there is now the additional threat of a victim, their dependants or the victim’s estate being entitled to bring a separate civil claim for damages against any employer that negligently exposed the victim to asbestos. “The damages awarded can reach £80,000 per case for pain and suffering alone,” observes Phoenix.
Contractors should also be aware of a Supreme Court ruling earlier this year, in the Employers' Liability Insurance "Trigger" Litigation. “It held that mesothelioma is ‘sustained’ or ‘contracted’ at the moment when the employee is wrongfully exposed to asbestos,” she says. “This means that an insurer’s liability will be triggered as long as the employer’s liability policy was in place at the date of asbestos inhalation, even if an asbestos-related illness manifests itself decade years later.
“Contractors are advised that this ruling could substantially increase insurance premiums, and some policies may not cover asbestos claims at all.”
The Great British Asbestos Survey
The survey of built environment professionals carried out in 2011 provides a snapshot of awareness levels about asbestos management rules. Notable findings were:
- 35% of contractors say they have disturbed asbestos during their work.
- 32% of duty holders not aware of their 'duty to manage' asbestos, which has existed since 2004.
- 37% of duty holders do not have an asbestos management plan in place.
- 25% of surveys are not completed in line with guidance.
- 17% of contractors do not request asbestos information from clients..
- 40% of contractors say they do not receive asbestos information from commercial clients.
- 60% of contractors say they do not receive asbestos information from residential clients.
- 25% of respondents had received no asbestos awareness training.
The results were carried out by the UKAS Accredited Asbestos Industry Group.