Control of Asbestos Regulations 2012

The Regulations are to be updated from April 6th 2012 following a verdict by the European Commission that the omission of two terms from the 2006 Regulations has allowed too many types of ‘low risk’ works to be exempt from the regulations for notification, medical examinations and record keeping.

The effect is to create a new category  of work entitled ‘Notifiable Non Licenced Work’. The requirements will be clarified in guidance but are likely to be as follows;
·    Notify to HSE before work commences
·    Carry out medical examinations once every three years for exposed staff
·    Keep records of work exposure
Please note that there is a 3 years transition period before measures concerning medical examinations take effect. for more information please see; http://www.hse.gov.uk/consult/condocs/cd237responses.pdf

Current guidance on Non Licenced work with asbestos
Under Regulation 3(2) you do not need a licence to work with asbestos if:
·    the exposure of employees to asbestos is sporadic and of low intensity (i.e. the concentration of asbestos in air does not exceed 0.6 f/cm3 measured over a 10 minute period);
·    the control limit is not exceeded (0.1 f/cm3 averaged over a 4 hour period);
and

  • the work involves short, non continuous maintenance activities;
  • the removal of materials in which the asbestos fibres are firmly linked in a matrix; or
  • encapsulation or sealing of asbestos-containing materials which are in good condition; or
  • air monitoring and control, and the collection and analysis of samples to ascertain whether a specific material contains asbestos.”

Corporate manslaughter or not?

We have been reviewing case law of late and, as part of our very busy round of Breakfast and Lunch club presentations, have delivered several talks on this issue.

For those who are unable to make these clubs we thought a quick summary of our discussion would be useful (http://www.outsource-safety.co.uk/breakfast-clubs.html).

Corporate manslaughter or not?
We have spoken on this subject before and have included it in our updates.  Its seems that more and more small businesses will face the spectre of corporate manslaughter over the coming years with the second case about to be heard in Manchester against Lion Steel Equipment.

As we have previously stated, the purpose of the regulation was to address large concerns where the identification of a ‘controlling mind’ within the business would otherwise have proved difficult.  However, experience now seems to tell us that any small business can expect to have this legislation used against them in the event of a death.

If we are to accept this then it would be useful for each of our clients to be a little more aware of what we can learn in terms of the case which has already been heard, Cotswold Geotech.

First lessons
To begin at the beginning, you must first have made a gross failing and Senior Management must have played a significant role in that breach.  However, someone has been killed and although you may take some comfort through senior management not being directly involved this is often not a good source of defence.

Why?

Well, you can delegate your responsibilities but not the accountability.  Even if you have a well resourced and trained safety manager you would still need to have ensured that they are carrying out their duties effectively or it would indeed be a failing of senior management in not ensuring that safety is being properly managed.

Help! I can’t always be to blame (can I?)
No, you shouldn’t be feeling that whatever you do you can always be punished and there are some simple steps you can take to protect yourself, your business and your reputation.

Step by step

Gross breaches come far below the standards which one would reasonably expect so make sure you are doing things to a recognised standard, for example;

1. Approved Codes of Practice (ACoPs as issued by HSE)
2. British Standards
3. Industry specific guidance
4. Industry bodies which provide guidance for your industry
5. Directors Codes of Practice issued by HSE and the Institute of Directors (IoD)

You should also be able to clearly demonstrate your good practice at Senior Management level through;

1. Board meeting minutes which deal with H&S issues;
2. Appointing a Board member specifically responsible for H&S;
3. Showing evidence of where Board level intervention into H&S have been made through site visits, behavioural observations or similar.

Now is the time to consider what you are doing and to make the simple, incremental changes which may one day prevent an accident from occurring or, at least, give you access to some form of defence should the worst happen.  If you would like to discuss this in more detail please contact your consultant to review your current arrangements or make contact with Roger Hart directly on 01453 800102.