Asbestos – The Duty To Manage
The duty to manage asbestos extends to all non-domestic premises. The key obligation, contained at Regulation 4 of the Control of Asbestos at Work Regulations 2002, requires the person who has the duty (the “dutyholder”) to:
- Take reasonable steps to discover if there are materials containing asbestos, and if so, discover their location, quantity and condition;
- Presume materials contain asbestos unless there is strong evidence that they do not;
- Make, and maintain, a record of the location and condition of any affected materials;
- Assess the risk of exposure to asbestos fibres;
- Prepare and periodically review a plan setting out how the risks will be managed; and
- Provide information to anyone who is liable to work on or disturb asbestos.
The “dutyholder” will generally be the person (or company) who has the overall responsibility for the maintenance of the premises.
In rented premises the lease will often be the starting point. If the tenant has overall responsibility for maintenance the tenant will be the dutyholder. Where the tenant pays a service charge and enjoys common areas the landlord may be the dutyholder. However, as the regulations relate to maintenance obligations of “any extent” it is possible that a landlord may be the dutyholder for external and common areas and the tenant for the internal areas. In either case, each dutyholder remains responsible for ensuring that their duties are carried out.
For the safety of its business and employees a tenant should always be sure of its obligations. Whether or not the tenant is the dutyholder, it is always sensible ensure that the premises benefit from an up to date asbestos survey.
