Marks & Spencer and its contractors had unwelcome press recently when convicted and fined more than £1.15m for putting members of the public, staff and construction workers at risk of exposure to asbestos. The risks arose as a result of the removal of asbestos-containing materials from two stores during refurbishment works. Any owner or occupier carrying out refurbishments where such materials are present could face similar prosecution if the process of removal is not properly managed and carried out in accordance with the legislation. To make life more complicated, that legislation is about to change, so keeping up to date is vital.

As a result of the European Commission taking legal action against the UK Government over the existing asbestos regulations, the Health and Safety Executive (HSE) is proposing brand new Control of Asbestos Regulations. The effect of them will be to cover a wider range of employers and situations than the existing regulations, and there will be fewer exemptions for low risk works. The new regulations will create a new category of work which is notifiable to the authorities but does not require a licence before it can be undertaken. The new category of non-licensed work, “Notifiable Non-Licensed Work” (NNLW), will require an employer to :

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

Non compliance with the new provisions may lead to prosecution. In addition to concerns for employees and the public, the reputational issues as well as the fines are not something any company wants to face.

Those involved in the industry may want to comment on the HSE proposals, in particular the types of asbestos-containing materials and work activities that should be categorised as NNLW. You have until 4 November 2011 and the Consultative Document and how to respond can be viewed and downloaded from the HSE website. We will be monitoring developments.