Asbestos on demolition and refurbishment projects: practical lessons from a recent HSE prosecution

Asbestos remains the leading cause of work-related deaths in Great Britain. Although asbestos was banned in the UK in 1999, it is still present in many buildings and structures. Preventing exposure remains a major enforcement priority for the Health and Safety Executive (HSE) and prosecutions continue to follow where duty-holders get asbestos management wrong.

In a recent HSE press release, two companies and a site manager were sentenced following a large-scale asbestos disturbance during demolition works. The case is a timely reminder that asbestos risk cannot be “managed on the fly” once works are underway: planning, competence and robust controls (including using the right contractor) are critical.

For clients, principal designers, principal contractors and contractors working on demolition and refurbishment projects, the message is clear: failures around asbestos can create serious health risks and lead to significant fines, project delays, reputational damage and (in some cases) personal liability. Below we set out practical steps you can take now to reduce risk.

1. Know your duties (and which regime applies) The key is to identify early which duties you hold (and in what capacity) so that asbestos is treated as a planning and competence issue, not just a “site” issue.

The Control of Asbestos Regulations 2012 (“CAR”) impose specific duties to prevent exposure to asbestos. In practice this means having reliable information about asbestos-containing materials (ACMs), assessing the risk and putting workable controls in place (including around surveys, plans of work, training, supervision and waste controls).

Alongside CAR, the CDM Regulations set the framework for how construction work must be planned, managed and monitored so it can be carried out safely. Where asbestos may be present, CDM should drive early decision-making on surveys, design and sequencing, competence, and how asbestos controls will be implemented and communicated throughout the project.

What to do now (practical checks): confirm who the client / principal designer / principal contractor / contractors are for CDM purposes; make sure asbestos is addressed in pre-construction information and the construction phase plan; ensure an appropriate asbestos survey has been commissioned, reviewed and acted upon before intrusive work starts; and verify that asbestos controls are reflected in method statements, inductions and supervision arrangements.

2. Manage interfaces and handovers (risk often falls between organisations)

Construction projects frequently involve multiple duty-holders. In projects, failures can occur at the interfaces: incomplete pre-construction information, unclear assumptions in the asbestos survey, late design changes, or poor communication during handover from survey to contractor. If you find yourself asking “who has the duty?”, the answer may be “more than one of you” – and the real question is what each party must do to discharge its own duty.

What to do now (practical checks): agree who is responsible for commissioning and reviewing the survey and for issuing pre-construction information; confirm how asbestos information will be shared with all contractors (including sub-contractors); build in a clear “stop work and escalate” process if suspected ACMs are uncovered; and document key decisions, assumptions and sign-offs (particularly where scope or sequencing changes).

3. Use the right contractor (and evidence competence)

Before starting any work likely to disturb the fabric of a building (particularly pre-2000 buildings), employers must ensure an appropriate asbestos survey has been completed and that the findings are understood and built into the plan for the works.

CAR distinguishes between licensed work, notifiable non-licensed work and non-licensed work. Getting that categorisation wrong can be costly. Where licensed asbestos work is required, you must use a properly licensed contractor and make sure the scope, plan of work, controls and clearance arrangements are in place. More broadly, duty-holders should be able to evidence why the selected contractor was competent for the specific asbestos risk on the project (not just generally competent for demolition/refurbishment).

What to do now (practical checks): check whether the planned tasks are licensed / notifiable non-licensed / non-licensed; confirm training and supervision arrangements match that category; verify insurance and (where relevant) HSE licence status; and make sure contract documents and programmes allow time for safe methods, air monitoring/clearance (where required) and lawful disposal.

4. Personal liability: directors and senior managers should not assume they are insulated

   This prosecution is also a reminder that individuals can face prosecution. Under section 37 of the Health and Safety at Work etc. Act 1974 (“HSWA”), where a corporate offence is committed with the consent, connivance or neglect of a director or senior manager, that individual can also be prosecuted.

   The risk is higher where asbestos issues have been raised previously but not acted upon, where cost or programme pressure leads to unsafe shortcuts, or where there is a failure to put in place (and monitor) workable controls on site. For senior leadership teams, the focus should be on governance: making sure the right people are appointed, the right information is available, and that escalation routes are used in practice.

   What to do now (practical checks): ensure reporting covers asbestos and other high-risk activities; test that stop-work authority and escalation procedures are understood and used; audit project files for evidence of decisions and sign-off (surveys, plan of work, competence checks, monitoring); and ensure incident-response plans include legal and communications input early.

If you would like to discuss asbestos risk management on an upcoming project, strengthening your contractor governance, or support with an HSE inspection/investigation, please contact Charlotte Whitaker or Marie Elizabeth Bailey in Burges Salmon’s Corporate Crime & Investigations team.

This article was written by Marie-Elizabeth Bailey.