After RAAC comes asbestos – what will be the legacy for public buildings?

Zoe Cooper isof counsel’ with law firm CMS

The importation, supply and use of asbestos was fully banned in 1999. Despite that, the Health and Safety Executive (HSE) estimates that asbestos continues to kill about 5,000 workers each year, and is found in around 300,000 non-domestic properties and significantly more homes. It is the single greatest cause of work-related deaths in the UK. There is an ongoing media campaign, supported by unions and MPs from all parties, calling for asbestos in public buildings to be removed.

The inhalation of asbestos fibres can cause a variety of chest diseases, including pleural thickening, asbestosis and mesothelioma. Mesothelioma is an aggressive cancer, generally associated with asbestos exposure, that mainly affects the lining of the lungs. It is estimated that more than 2,700 people are diagnosed with mesothelioma each year in the UK. There is no cure and in most cases the life expectancy of those who develop it is very limited. Symptoms typically arise decades after exposure.

There appears to be an increase in claims from individuals because of the condition of their workplaces”

The management of asbestos in non-domestic buildings is governed by the Control of Asbestos Regulations 2012. The regulations are enforced by the HSE and every five years it carries out a review of their effectiveness. The HSE’s management of the regulations was the subject of an inquiry by the Work and Pensions Committee in 2022. The committee considered the risks posed by asbestos in the workplace, the groups of people who are most affected, and how well the current regulations are working. It considered the tension between those campaigning for a programme of asbestos removal and those concerned that such a programme might increase the risk of harmful exposure.

The committee’s report, published on 21 April last year, was critical of the HSE, concluding that it had been slow to invest in research to better understand the costs and benefits of a wholesale removal of asbestos from the workplace or options for its safer removal. It made several recommendations, including that a deadline of 40 years should be set for the removal of asbestos from non-domestic buildings, and that a register of asbestos in non-domestic buildings be developed to assist with the assessment of regulatory compliance.

The government responded to the report on 21 July 2022 and, in almost every case, the recommendations were rejected. 

In relation to the proposal for a register, the government’s view was that it would require significant investment from duty holders and government, duplicating existing information with no clear indication that asbestos-exposure risks would be improved. In relation to the 40-year deadline for removal, the view was that the risk to asbestos workers in removing it would likely be higher than the risk of exposure to building users – provided the asbestos was managed in accordance with regulations.

Call for action

Following the government’s response, there has been a media campaign, led by the Times, calling for the phased removal of asbestos from public buildings, starting with schools and hospitals. This July, the Times reported that there may be more than 6 million tonnes of asbestos present in as many as 1.5 million buildings. A 2019 survey by the Department for Education estimated that 81 per cent of schools in England contained it. 

According to the National Education Union, about 400 teachers have died from mesothelioma since 1980. This number is probably an underestimate because it is not necessary to state a person’s occupation on their death certificate if they die over the age of 75. It is also reported that female former teachers born from 1935 to 1954, who worked when asbestos was still being installed in schools, have a 40 per cent increased rate of mesothelioma.

It is an employer’s duty to take all reasonable steps to protect the health, safety and welfare of their employees. Occupiers of premises owe a duty of care to all visitors to ensure they are kept reasonably safe. Regulation 4 of the 2012 regulations places a number of specific duties on duty holders in relation to the management of asbestos in such premises

While the total number of mesothelioma deaths per annum is beginning to decrease, there appears to be an increase in claims from individuals who were not exposed through working with asbestos, but rather, it is alleged, because of the condition of their workplaces. This at a time when we appear to be a long way from having a clear plan about how best to deal with asbestos in the fabric of those buildings. For now, the emphasis is on effective management rather than removal. Employers and others responsible for the upkeep of such premises must ensure they are familiar with their legal duties and comply. The concern is that, while asbestos remains in public buildings, we will see an increasing stream of claims brought by those who allege their workplace gave them mesothelioma.

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