Companies failing to comply with regulation 4 of the Control of Asbestos at Work Regulations 2002, which came into effect at the end of last month, not only face the possibility of actions against them, but also being uninsured for the risk, writes Katie Paxton-Doggett

Regulation 4 of the Control of Asbestos at Work Regulations 2002 came into force on 21 May 2004 placing a duty on anyone with responsibility for the repair and maintenance of non-domestic premises to manage any asbestos in the building.

Between the 1950s and the 1980s asbestos was used extensively as a building material, especially for insulation and as a fire-retardant.

The more dangerous varieties of blue and brown asbestos were banned in 1985, but asbestos-containing materials (ACMs), such as asbestos cement, continued to be used until 1999.

Asbestos was often mixed with other materials, which now makes it difficult to identify.

It is estimated that more than half a million non-domestic premises now have some asbestos.

At least 3,500 people in Great Britain die from mesothelioma and asbestos-related lung cancer each year, with annual numbers predicted to continue rising at least for the next ten years, reaching closer to 10,000 by 2010.

The regulations are intended to prevent any unnecessary deaths or suffering.

The duty to manage falls on anyone with responsibility for the maintenance and/or repair of non-domestic premises or common areas of residential rented properties.

It will apply through the application of a contract or tenancy agreement or because of ownership of a property, and thus the landlord, tenant or a managing agent could be responsible.

In some situations, responsibility could be shared between two or more parties.

The regulation also includes a duty to co-operate.

This will, for example, require a tenant to allow a landlord to gain access to a building to carry out a survey.

A building surveyor or architect who had plans that show information on the whereabouts of asbestos must make these available to the duty holder at a reasonable cost.

While it is possible to appoint a competent person or company to carry out the work to meet the requirements under regulation 4, responsibility remains with the duty holder.

Therefore, the duty holder must be involved in the final assessment of the potential risk and its ongoing management.

The duty holder must take reasonable steps to determine the location and condition of materials likely to contain asbestos.

This will include a thorough physical inspection both inside and out to identify materials that are, or may contain, asbestos.

Account must also be taken of building plans and any other relevant information that may tell where asbestos was used in the construction or refurbishment of premises.

A written plan must be prepared, identifying the location and condition of ACMs or presumed ACMs in the premises, the risk of anyone being exposed to fibres from these materials and how these risks are to be managed.

If ACMs are in good condition and not likely to be disturbed, damaged or worked on, it is usually safer to leave them in place and manage the risk.

ACMs will pose a risk where they are in poor condition or are likely to be disturbed or damaged.

In these circumstances they will need to be repaired, sealed, enclosed or removed.

Someone who is trained and competent to do so must do ACM removal.

For most work on asbestos insulation, asbestos insulating board and lagging, including sealing and removal, this must be done by an Health and Safety Executive-licensed contractor.

The plan should be reviewed and monitored periodically or if any significant changes are envisaged, such as a programme of works on the property or if any of the ACMs are removed.

ACMs left in place must be inspected regularly to ensure that their condition has not deteriorated further.

Time between inspections will depend on the type of asbestos, its location and condition, but it should be at least every six to 12 months.

Information on the location and condition of ACMs must be provided to anyone who is liable to work on or disturb them.

This will include anyone whose work involves drilling, sawing or cutting into the fabric of a building such as plumbers, carpenters and electricians, or even computer installers or cabling engineers.

Information should also be made available to the emergency services.

Any workers or contractors should be informed of the location and condition of ACMs and warned of the potential threat to their health.

Workers should take care not to create dust, and use of high-speed power tools should be avoided.

Where possible, the material should be kept wet.

Only workers wearing a suitable respirator and protective clothing should be permitted in the work area.

Clothing should not be taken home to wash.

The area should be thoroughly cleaned using a vacuum complying with BS 5415.

The majority of the regulations came into force in November 2002.

However, the regulation 4, the duty to manage, had an 18-month lead-in period.

However, research published by Zurich Risk Services in November 2003 suggests that 66% of companies in the UK still have no plans in place to manage the risks associated with asbestos in the workplace, thereby falling foul of the regulations.

The cost of putting into place strategies to comply with regulation 4 is estimated to cost businesses 3.3 billion.

However, the potential cost to businesses of non-compliance is far greater.

Failure to meet compliance is a criminal offence and offenders could find themselves facing unlimited fines or prison sentences.

And this is no mere threat - custodial sentences are occasionally given in severe cases.

The first was imposed by Bristol Crown Court in 1996 on a defendant who had demolished asbestos-containing sections of a factory with an excavator.

It seems inevitable that UK insurance companies will require proof of compliance to offer adequate and lawful Employers' Liability Insurance, in accordance with The Employers' Liability (Compulsory Insurance) Regulations 1998.

This could mean that companies failing to comply with regulation 4 not only face the possibility of actions against them in the future from employees, contractors or other users of their premises who contract asbestos-related diseases, but they also face being uninsured for the risk.

Katie Paxton-Doggett is a solicitor and producer of the Law Channel, Einstein Network