What are the current asbestos regulations? Understanding Health & Safety at Work Act 1974

The UK’s now-extensive asbestos regulation – largely contained within the overarching Control of Asbestos Regulations 2012, also known as CAR 2012 – has unquestionably played a major part in saving lives through the reduction of instances of asbestos exposure.

Today, many of us might almost take for granted the strictness of the UK’s rules that are geared towards controlling the risks this now-banned, carcinogenic material can pose to human health. In the event of someone breathing in or swallowing asbestos fibres, they can be at heightened risk of developing potentially fatal asbestos-related disease. Such health conditions – even to this day – cause around 5,000 deaths a year in the UK.

It has been illegal to import and use asbestos in the UK since 1999. However, with the fibrous silicate mineral having been used heavily in UK industries such as construction and shipbuilding prior to that date, it is believed that the substance may still be present in as many as 1.5 million buildings across the country. This, combined, with the typically several-decades-long latency period for asbestos-related disease, helps to explain why the numbers of associated deaths are still so high.

However, while much discussion of UK asbestos law today centres on the Control of Asbestos Regulations 2012, another piece of legislation that has played a critical role down the years is the Health and Safety at Work etc Act 1974 (HSWA).

This particular Act does not specifically mention asbestos, so you might wonder how it would help with controlling asbestos risks. However, as we explore in greater detail below, the HSWA has long made a major contribution to reducing risks to all manner of UK workers’ health and safety.

Part of the reason why the Health and Safety at Work Act 1974 does not specifically reference asbestos, is because it applies to all risks that workers may face, not merely those from asbestos. This landmark legislation imposes a requirement on UK employers to carry out their work in such a way that their employees will not be exposed to health and safety risks.

Furthermore, under this Act, employers are required to provide information to other individuals about their workplace that might have implications for their health and safety.

What is the legislation history and implementation date of the Health & Safety at Work Act 1974?

The Health and Safety at Work etc Act 1974 was far from the first piece of UK legislation aimed at helping to control the potential risks of asbestos in the workplace.

The first cases of asbestosis were reported around the start of the 20th century, and in 1901, the Factory and Workshop Act was passed into law. A section of this Act was entitled “Dangerous and Unhealthy Industries”, under which, the Asbestos Industry Regulations were eventually created in 1931, covering the main asbestos manufacturing processes. These regulations governed the British asbestos industry from 1931, right up until 1970.

Meanwhile, the aforementioned Factory and Workshop Act continued to be amended and changed in various forms until the introduction of the HSWA. By the 1970s, the British public were becoming increasingly aware of the very real health risks arising from contact with asbestos, and political pressure was intensifying to further restrict the substance, although it remained in legal use.

The Health and Safety at Work etc Act, however, made a vital difference, and it wasn’t merely employees who stood to benefit. Section 3 of the Act, for example, included general duties for employers and the self-employed in respect of people other than their own employees. Section 4, meanwhile, set out general duties for anyone who had control, to any extent, over a workplace.

Although the HSWA itself does not explicitly mention asbestos, the later HSWA (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015 do address asbestos directly. These Regulations outline the circumstances in which self-employed individuals have a duty – as set out under section 3(2) of the HSWA – to carry out undertakings in a way that protects themselves and other persons (not being their employees) from being exposed to health and safety risks.

You should note, if you are a self-employed person, that you also hold a duty in respect of your employees; this is contained under section 2 of the original 1974 Act.

Who does the Act apply to?

Given the HSWA’s status as the primary piece of legislation covering health and safety in workplaces in Great Britain, it shouldn’t surprise you to learn that the Act imposes wide-ranging duties on employers. These duties are outlined under section 2 of the Act.

However, employees also have certain duties under sections 7 and 8 of the HSWA, as do the owners, managers, and maintainers of work premises.

It is important to recognise that the HSWA is a primary piece of legislation; further regulations exist that serve to complement the HSWA, so it is also crucial to be aware of these. In the case of asbestos specifically, it is the Control of Asbestos Regulations 2012 – which were made under the HSWA – that largely govern how the now-banned substance is managed in the UK today, including in the non-domestic premises where it is still present.

We mentioned above, the HSWA (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015. This is an example of a statutory instrument, which is essentially a secondary piece of legislation that allows for small changes, updates, or additions to be made to existing legislation, without the need to create an entirely new Bill.

What is the scope of asbestos regulations in the Act?

As we covered above, the Health and Safety at Work etc Act does not mention asbestos specifically; explicit details about legal requirements in relation to asbestos are addressed in complementary regulations in the UK, such as those we have mentioned elsewhere in this article.

However, the HSWA is still very important and relevant for many individuals and organisations that may be anxious to ensure they stay on the right side of the law when it comes to controlling the risks asbestos may pose to employees and other people using their premises.

The HSWA stipulates that people working at a given premises have a duty of care to ensure the immediate and ongoing safety of all others using the premises. So, it is not only employees who those subject to the HSWA’s requirements are obliged to protect; employers, those in control of the premises, and others who are not directly employed, as well as the public, all need to be protected from safety risks in accordance with this law.

It should be emphasised, again, that the HSWA puts in place general and wide-ranging responsibilities covering all health and safety risks in the workplace. So, while asbestos is not explicitly referenced in the Act, the risks that arise from asbestos are still covered by it.

Let’s give an example of how the HSWA relates to asbestos in a “real-life” scenario. If a tradesperson has been contracted to carry out work in an office or retail store that would require them to drill into a wall (such as if they need to put up some shelves), they need to first make sure there aren’t any risks from asbestos-containing materials (ACMs) that would arise from this.

This is because the HSWA imposes on such a tradesperson a duty of care to not put at risk the health of anyone using the building. If, for example, they were to ignore the risk of ACMs and simply drill into the wall anyway – with the consequence of releasing asbestos fibres into the air – this would indeed count as risking the health of other users of the building.

Regarding the above example, it is also important to note that the dutyholder of the given premises would be obliged to communicate the presence of any ACMs to the tradesperson. This is set out under CAR 2012, which complements the HSWA.

What are the key provisions and requirements of the Act?

We explained above that while the original HSWA from 1974 doesn’t explicitly reference asbestos, the subsequent HSWA (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015 very much do. Regulation 2 of these Regulations identifies which undertakings are of a prescribed description for the purposes of section 3(2) of the 1974 Act.

Sure enough, referenced under Regulation 2 are:

• Any work with asbestos
• Any work which involves a sampling activity, but is not work with asbestos
• Any work carried out by a dutyholder under Regulation 4 of the Control of Asbestos Regulations 2012; this part of CAR 2012 covers the “duty to manage” asbestos in non-domestic premises

If you are unsure about any aspect of the asbestos regulations that are presently in force in the UK, and whether certain provisions apply to you, please feel free to read our previous guide to the process of achieving compliance. Further resources are also provided in our broader online Learning Centre, or you can contact us to request a quote for any of our asbestos services.

WHat are the compliance and enforcement considerations of the Health & Safety at Work Act 1974?

There are multiple bodies in the UK that are involved in enforcing the asbestos regulations; these include the UK Health and Safety Executive (HSE), local authorities (LAs), and the Office of Rail and Road (ORR).

Local authorities are the main enforcing authority with regard to retailing, wholesale distribution, warehousing, offices, hotel and catering premises, and the consumer and leisure industries. The Office of Rail and Road, meanwhile, takes responsibility for railway stations and depots, as well as other rail premises.

Various penalties can be handed down for breaches of the Health and Safety at Work etc Act. The HSE can initially issue a notice of improvement or prohibition to an enterprise that is in breach of the legislation. However, the eventual consequences can be much worse than this, with fines of up to £20,000 possible. In the case of breaches that put human lives at risk, unlimited fines and/or imprisonment can be imposed.

This is before one considers the serious reputational risk posed to companies that do not comply with health and safety law, as well as the risk of offenders being disqualified from their industry.

Conclusion: the Health & Safety at Work Act 1974 provides a crucial foundation for asbestos law in the UK

While – as explained in this article – the Health and Safety at Work etc Act does not mention asbestos specifically, its provisions are highly relevant and important for employers and others who are responsible for controlling the risks asbestos can pose to human health.

When the HSWA is considered alongside complementary regulations such as the Control of Asbestos Regulations 2012, it soon becomes clear just how imperative a role they play in protecting a wide range of individuals from asbestos-related health risks.

Would you like to learn more about our own services and expertise in relation to asbestos here at Oracle Solutions, and to ask for a fast and free quote? If so, please don’t hesitate to call us today, or to send us an email for further information.