With the vast array of legislation and case law constantly creating new responsibilities and liabilities for businesses, it is little wonder that the property industry feels less than confident when confronted with asbestos. 

The recent conviction of Marks and Spencer plc (M&S) and its contractors for breaching their duties to protect staff, workers and members of the public from exposure to asbestos when refurbishing two of its stores, and the subsequent fines of more than £1.5million, once again illustrates the importance of managing and carrying out the removal of asbestos containing materials strictly in accordance with all legislation. 

With this in mind building owners and occupiers should be aware of the proposed changes to legislation briefly summarised below which will create a new category of “notifiable non-licensed work”:

Requirement for change

As a result of the European Commission issuing a reasoned opinion that the UK Government had not fully implemented the EC Directive that gives rise to current asbestos legislation, the Health and Safety Executive (HSE) proposes to issue a new set of asbestos regulations in April 2012. 

Summary of proposals

The key part of the proposals is the introduction of a third category of work to be known as “notifiable non-licensed work”.  Work under this category will be exempt from requirements to hold an asbestos licence but will be notifiable to the authorities.  An employer will have to:

  • have arrangements to deal with accidents, incidents and emergencies;
  • designate asbestos areas;
  • notify work with asbestos to the relevant enforcing authority;
  • carry out medical examinations; and
  • maintain registers of work (health records)

so placing additional requirements on employers in order to comply with their statutory duties.

The consultation period comes to an end in November 2011, however the long-term implications of these proposals are as of yet unclear.  Whilst the new regulations will be implemented in 2012, the HSE’s proposals indicate that the legal landscape for asbestos is constantly evolving.  As such, effective planning is essential for organisations to steer clear of the penalties awarded to M&S.



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