Coronavirus Guidance for Employers - Click Here

Does Your Company Lease Your Premises? Part 2

Questions which are often raised with Consultants are:

  • Does a commercial landlord have any legal responsibilities for safety in the premises they are leasing?
  • Where they do, do those responsibilities impact on the legal responsibilities of an employer who is also a tenant?

Produced in three parts, this part of the Alert (2) concentrates on Asbestos management.

The person responsible for managing any Asbestos content on the site, will depend on the terms of the lease with a well-drawn up lease making specific reference to asbestos content and its management so that there is no doubt at all about where the obligation lies.

This is important because Asbestos found on the premises may have to be removed, which can be very costly. Also, the penalties for Duty Holders who are found not to be managing Asbestos properly are severe and can include a prison sentence.

The duty to manage asbestos is contained within Regulation 4 of the Control of Asbestos Regulations. If you own, or are responsible for maintaining or repairing a building, then you will be classed as a “Duty-holder” under Regulation 4.

Even if you have no responsibility for the management of the Asbestos content of the site, if the building is a pre-2000 build then any Asbestos content should be known so that Company management can  demonstrate they are ensuring safety of employees and aware of the associated hazard and risk, with evidence gathered in the form of an Asbestos survey from the landlord to provide definitive proof of content or not.

This is important regardless of the company’s responsibility to manage the content to ensure that any risk of exposure to a company employee, or even a contractor asked to work on site is understood and appropriately controlled by the management, even if it is just that warning signage has been posted by the Landlord.

If you have responsibility for the maintenance of a workplace due to the lease or ownership then in practical terms, you should be doing the following to manage asbestos in your workplace:

  • You start with a management survey, which should have been carried out by a UKAS accredited company. The survey (likely produced for the landlord) should state the location and condition of known or presumed asbestos containing materials (ACMs). If you are going to carry out any refurbishment or demolition of the premises, then you will need a further survey (demolition or refurbishment survey), which are more involved and reflect the hazards associated with the activities to be conducted.
  • Now assess the risk of exposure to site users, considering any tenants, contractors, cleaners, maintenance personnel and others who could attend the site i.e. firefighters. From this, you can develop and implement your management plan, which should set out how you intend to carry out determined control measures so that persons are not exposed. Prioritise your actions and write them in an action plan.
  • You will need to think about how you will carry out checks for any damage or deterioration. Damaged or deteriorated ACMs must be repaired, removed or isolated to prevent exposure to released fibres. If ACMs need to be sealed, encapsulated or removed, you will need to employ a licensed contractor if the materials are high risk, e.g. asbestos insulation panels. If the materials are low risk, e.g. asbestos cement, then an unlicensed but competent contractor may carry out this work.
  • Aim to prevent all unintentional disturbances of ACMs by having clearly defined procedures. Don’t forget to include emergencies.
  • Appoint a responsible person, who is competent, to oversee the management of asbestos.
  • List workers who may be affected by asbestos and stipulate the training requirements for each group.
  • Control access to the premises and ensure that work in areas where ACMs are present cannot start without a Permit to Work. Maintenance staff and contractors should know your rules about ACMs and how to work safely on or adjacent to them.
  • If ACMs are accidentally disturbed, you must log the incident.
  • Review your management plan at least every 12 months by carrying out visual inspections for damage, reviewing the incident log.

Remember: the duty to manage is all about putting in place practical steps to protect workers and others from the risk of exposure to asbestos fibres.

Your risk assessment for the site and activities conducted on it should refer to Asbestos, state whether the site is asbestos free (refer to the evidencing document and have a copy on site in case of inspection) or where Asbestos is located and how it is managed, referring to the relevant survey report and management document, produced.

A building that is a post 2000 build should be Asbestos free and therefore Asbestos will not need to be mentioned on the site risk assessment.

The overriding message to be taken from this safety alert is that the terms of a commercial lease are crucial in setting out a landlord’s and tenants’ responsibilities. This is especially relevant in relation to health and safety issues. Where these are passed onto the tenant the terms of the lease should be clearly stated so that no residual liability falls on the landlord.