11/01/2016
A food company and their contractor were recently fined after asbestos was disturbed during building work and only identified by chance when an asbestos removal contractor attended the site. The case highlights the need for companies and contractors to ensure asbestos surveys are carried out and commissioned before work begins on a project.
What is an Asbestos Survey?
If work is going to be performed amongst asbestos-containing materials (materials that are either known to contain asbestos or presumed to contain asbestos), then as part of the health and safety risk management process, an Asbestos Survey needs to be carried out before work is undertaken.
The purpose of an Asbestos Survey is to:
1. Find asbestos-containing materials, and record the amount of asbestos and its location;
2. Document how accessible the asbestos is, its condition and if there are any surface materials; and
3. Identify what type of asbestos the materials contain.
There are two types of Asbestos Surveys:
Management Survey
A management survey is aimed at managing the risk of asbestos-containing materials during the day-to-day use of a premises. The survey is designed to ensure no one disturbs the asbestos-containing material accidently, and no harm comes to anyone due to the presence of the asbestos.
Refurbishment/Demolition Survey
This type of survey is required when work is needed on or to the premises. A professional surveyor is normally required to perform this type of survey. It aims to ensure:
1. No one will be harmed by work on asbestos-containing materials; and
2. The work required will be done by the right contractor, in the correct way.
Why is it so Important to have a Survey Carried Out?
In the recent case involving food company, Mizkan Euro Ltd and contractor, DH Welton, the Stafford Crown Court heard that no Asbestos Survey had been carried out by either company prior to work commencing, (which involved the demolition of an external wall to remove some tanks from the factory).
Because risk management had not been correctly undertaken, (in the form of commissioning a survey), when the wall was demolished, an asbestos insulation board at the top of the wall was unknowingly broken up. A skip of demolition debris was found to contain asbestos which had been identified by an asbestos contractor who had been called to site. For the work to be undertaken correctly, a licensed asbestos removal contractor should have been appointed to remove the asbestos under controlled conditions prior to the wall being demolished.
Both companies were found guilty of breaching sections 2(1) and 3(1) of the Health and Safety at Work etc Act for failing to carry out an adequate risk assessment. DH Welton was also found in breach of regulation 5(1)(a) Control of Asbestos Regulations 2012. Regulation 5 requires employers to identify the presence of asbestos, and its type and condition before any building or maintenance work liable to disturb asbestos begins. It also sets out the requirement to arrange a survey if the existing information on the presence of asbestos in the premises is incomplete or appears unreliable.
For failing to carry out an asbestos survey, Mizkan Euro Ltd was fined a total of £120,000 and DH Welton was fined £45,000. Both parties also had to pay costs.
In Summary
Putting together, an Asbestos Survey may seem like a waste of time and resources, especially if the work required is minor; however, as the case above shows, failure to perform adequate risk assessment when it comes to work being done on or around asbestos-containing materials can result in harsh fines from the Court.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. If you have recently had a health and safety incident occur in your workplace and require legal advice, please phone us on 0207 993 6960.