Do you own a commercial building? Do you operate a building as a facilities manager, or contractor, or franchisee? How much do you know about your personal responsibility as a Duty Holder for asbestos under the law?
Of course, you may not be an asbestos expert. Nor are you expected to be. A certain knowledge of the substance and its risks and mitigations can be expected. As with any other legal duty, ignorance of it is not a relevant defence.
Can the responsibility be outsourced?
In a word, no. The Health and Safety Executive (HSE) is increasingly making statements that the Duty Holder can and will be held accountable.
Of course, it’s a good thing to bring in expertise. But that’s not the same as handing over the responsibility. It’s best viewed as appointing suitable and competent people to support you in your duty. Let’s look at what is expected of the Duty Holder in relation to those things. The parties contracted to carry out the work must be:
Competent. You can be held accountable for appointing people who have suitable qualifications for the role that they perform. More on that in the ‘Who to appoint’ section.
Suitable: Competent people are not necessarily suitable for every job. A conflict of interest is one reason. This is discussed further below.
Who to appoint
There are various roles to be performed in relation to asbestos management. The right people must be given authority to carry out the relevant tasks. (Note the difference between ‘authority’ and ‘responsibility’ – the duty holder and contractor are both legally responsible).
There are at least three roles to be filled:
- An Asbestos surveyor. You must know what accessible asbestos materials are present within a building; Products, condition, extent, and recommendations on how to manage them long-term. If refurbishment or demolition works are to be undertaken, you will need to know where all asbestos items are, including those inaccessible during normal occupation, so that they can be safely removed or managed during the works.
- An asbestos analyst. They perform two main roles during asbestos removal. Analysis of air samples to confirm that the asbestos is contained within the controlled work area. Also, signing off work as having been appropriately completed and declaring the area safe for reoccupation. This is known as the Certificate of Reoccupation or 4 Stage Clearance Certificate on the completed asbestos removal project.
- An asbestos removal contractor if required for remedial / removal works.
You have to be able to demonstrate reasons why they are deemed qualified for the specific job.
What are conflicts of interest?
A removal contractor makes money by removing asbestos. It’s in their interest for asbestos to be found. Should they be carrying out the survey, you might find that materials not asbestos are suddenly asbestos so they can get remedial works.
Or what if the removal contractor appoints the analyst? If the analyst fails the clearance – deeming it not up to standard, they will lose money and the profit margin will shrink
How do you know you are getting the best quoted price?
An analyst has the final say on whether or not a job has been completed satisfactorily. If they are reliant on a removal contractor for payment for this job, or worse, a regular flow of work, then how independent is this assessment? What pressure might they be under, or feel under to do things that they might otherwise not do? How will the analyst ensure that safety standards are maintained throughout the job – up to air testing and decontamination of personnel?
A contractor whose job is to demolish a building would have a conflict of interest if they were also given responsibility for removing asbestos. How thoroughly, separately, and compliantly are the two jobs done?
It should be noted that no dishonesty is necessarily implied about the above company types. A conflict of interest exists whether or not it manifests in different decision-making. It is defined by the existence of a dilemma rather than by the outcome. Conflicts of interest related to regulated and safety-critical issues such as asbestos should be avoided. Where they are found to exist, they should be managed.
What to do
The Duty Holder should be the party that contracts the analyst and the removal contractor. You can of course take help, advice, and recommendations. But you are ultimately the contracting party.
One way of dealing with all of the different roles and responsibilities, preventing conflicts of interest, and ensuring the responsibilities of the Duty Holder are correctly managed is to appoint a qualified and competent project manager. Again, this is not to say that the Duty Holder passes on their responsibilities, but that those responsibilities are likely to be professionally discharged if this is done. Appointing a genuine expert is a reasonable thing to do.
When we deliver project management, one of the ways that we ensure the Duty Holder is managing their responsibilities is to keep them informed of the things that are being done on their behalf. And, crucially, the reasons. We also provide detailed reports and plans (such as survey reports and an Asbestos Management Plan) that are suitably detailed, in a language that can be understood, and make clear the future requirements for effective management of their asbestos risks. This is useful to them regardless of who carries out any future tasks.
Impartiality is ensured because the contracted parties are not reliant upon each other financially. And professional standards are contractual, so insistence on correct procedures or high standards before work is passed will never be a risky thing to ‘call-out’.
The work schedule is done with respect to other parties and without any pressure to rush anything or cut any corners. This is even more important now that the HSE specify timeframes for particular jobs. These are the kind of up-to-date insights that we will be aware of and ensure your project is compliant.
Our project management services include producing tender documents for all work that needs to be done, ensuring fair competition between providers based on knowledge of the required specification, scheduling of work, advising and specifying safety standards, and passing the work as satisfactory at the end. This, of course, is all documented, ensuring that the Duty Holder has a complete record of the professional management of their responsibilities.
We write project documentation that mitigates any potential problems – such as the consequences of any work not being done to standard and the contractor’s duty to rectify. So you won’t be left with an incomplete job.
Our Managing Director, Chris was previously trained as a ‘Supervisory Licence Holder’ when the HSE was supporting this qualification. This knowledge still informs the way he does things (as well as Prince2 project management, degree in Environmental Management, NEBOSH and other health and safety qualifications, P405 Management of Asbestos in Buildings, P402 Proficiency Certificate in Buildings Surveys and Bulk Sampling of Asbestos, P403 Proficiency Certificate in Asbestos Fibre Counting (PCM), and P404 Proficiency Certificate in Air Sampling of Asbestos and MMMF and requirements for a Certificate of Re-occupation). This, combined with the relevant insurance can give you confidence that you will have the right team of professionals in all areas. We see it as a kind of pyramid, with the Duty Holder at the top and in overall charge. We represent them and advise them. And each contractor reports to the Duty Holder and us without undue influence from others.
For more, see our asbestos project management services.