Following on from our “Changes affecting the property industry in 2012” update article in January, the Control of Asbestos Regulations 2012 (the “2012 Regulations”) have now come into force, as of 6 April 2012.

The purpose of these Regulations is to repeal and re-enact the 2006 Regulations of the same name which have been deemed to not fully implement the 2003 European Commission Directive on protecting workers from the risks of exposure to asbestos. There are many buildings owned or leased in the UK which contain asbestos and, as a result, the Health and Safety Executive cites asbestos-related disease as the single greatest cause of occupational deaths in the UK, resulting in approximately 4,500 deaths each year.

As such, any landlord, tenant or managing agent responsible for the repair or maintenance of such buildings ought to be aware of the changes brought in by this legislation.

The 2006 Regulations prohibited the importation, supply and use of all forms of asbestos, as well as continuing the bans on blue, brown and white asbestos that were brought in previously. Various duties were also placed upon employers carrying out work with asbestos to protect their workers. However, in February 2011 the European Commission (“EC”) issued an opinion that the UK 2006 Regulations allowed too many exemptions in respect of “low-risk” work done with asbestos, thus allowing employers to avoid certain duties towards their employees. As a result, the 2006 Regulations have now been amended to bring them into line with EC law.

Whilst the core provisions of the new Regulations remain the same, there are additions to the legislation which rectify the problems highlighted by the EC by narrowing the scope of activities which can be exempted from the requirements of the Regulations. Under the 2006 Regulations there were two categories of work done: “Licensed” and “Non-Licensed”. Non-Licensed work is exempt from certain requirements, such as undertaking medical examinations of workers.

The 2012 Regulations create a third licensing category of “Notifiable Non-Licensed work” which includes a list of activities that were previously in the “Non-Licensed” category. Non-Licensed activities are now limited to the those dealing with “safer” types of non-degraded, non-friable asbestos containing materials which aren’t deteriorated and where asbestos fibres are firmly bound.

The new categorisation means that a far wider range of activities will be subject to stipulations that employers carrying out these “low-risk” works with asbestos will have a number of additional duties, including:

– undertaking medical examinations of workers;

– maintaining a register of the type and length of work undertaken by each worker; and

– notifying the asbestos-related work to the relevant enforcing authority.

There will be a three year transition period before the requirement for workers working within this category to have medical examinations comes into force, and there is little indication as yet when notification of the works must take place. However, guidance is to be provided in the form of the two Approved Codes of Practice that accompanied the 2006 Regulations, which are due to be revised and republished in modified form to supplement the new Regulations.

There is speculation that there will be a high degree of non-compliance with the Regulations, particularly amongst smaller companies where the costs of additional regulation will be felt more heavily. However, as the penalties for non-compliance can amount to a large fine and/or a criminal conviction, those working in the property industry should ensure that all works involving asbestos are carried out in accordance with the new Regulations.

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