Safety In Commercial Property: An Expensive Business

Whether you are an owner, manager, occupier or service provider there are lessons to be learnt from the increasingly stern approach being taken by the Courts to protecting the safety of those in non-domestic premises. In this article, we will consider two of the key challenges: the management of asbestos and fire safety.

There is no doubt that for some time there has been increased public thirst for harsher penalties to be imposed for breaches of health and safety law. Whilst larger fines had typically been reserved for public disasters and multiple fatalities, more recent cases have re-drawn the boundaries.

Asbestos management

Any business involved with the management, ownership, occupation or work within buildings constructed before 2000 must be alive to the Control of Asbestos Regulations 2012 ("CAR"). The key provision is regulation 4: the duty to manage asbestos.

Who holds the duty?

"Every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises". The potential scope for embracing owners, occupiers, managers and service providers is clear. The HSE has shown a willingness to consider and enforce across the spectrum of involvement in commercial premises.

What does the duty entail?

Those required to discharge the duty must:

Carry out a suitable and sufficient assessment to identify whether asbestos is liable to be present Presume materials contain asbestos unless there is strong evidence to the contrary Make and maintain records of the location and condition of any asbestos Risk assess the likelihood of exposure and implement appropriate control measures Prepare an asbestos management plan, which must be implemented and periodically reviewed Provide information on asbestos to anyone liable to work in affected areas What other duties apply?

Businesses must also be aware that the management of asbestos falls within their "general duties" under health and safety law, namely those set out in Sections 2 and 3 of the Health and Safety at Work etc Act 1974. These require employers to take reasonably practicable steps to ensure the safety of both employees and non-employees who might reasonably be affected by their operations. These provisions are often used to prosecute businesses, for example in relation to refurbishment works leading to asbestos exposure incidents.

What happens when things go...