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Reducing asbestos risk

The presence of asbestos in a building requires careful management if schools are to fulfil their legal obligation to protect pupils

Posted by Dave Higgitt | November 28, 2014 | Security & safety

More than a decade after the duty to manage asbestos in schools was introduced, it has been found that many schools are still failing to meet the safety standards that are required. Health and Safety Executive (HSE) figures indicate that almost a third of the schools that were investigated received written advice or were served with an improvement notice. Thirteen per cent faced legal action. The government has recently consulted on the issue, and there is real concern that staff and pupils may be at risk.

The union UCATT estimates that there are still up to six million tonnes of asbestos in public buildings, including schools. Exposure to asbestos can lead to a range of diseases, from pleural plaques to lung cancer and mesothelioma (a cancer of the membranes that cover the lungs). There are around 5,000 deaths in the UK each year which can be attributed to asbestos exposure.

Exposure to asbestos does not automatically result in any illness. However, being exposed before the age of 30 can greatly increase the risk of contracting mesothelioma. This means that in the school environment in particular, asbestos must be carefully managed.

Contrary to what the enforcing authorities had expected, deaths from mesothelioma have risen, most notably in the case of women. Asbestos-related disease can take anywhere between 15 to 50 years to develop, which is why there is an understandable desire to prevent any further exposure to pupils, teachers and/or contractors working in schools.

The three main types of asbestos are blue (crocidolite), brown (amosite), and white (chrysotile). The blue and brown forms have been banned in the UK since the 1980s and the white form since 1999, but many older buildings still contain asbestos. Since 2004 there has been a duty to manage asbestos in workplace buildings, including schools. This duty of care is placed on the employer or on the person who is in ‘control’ of the building. To determine who is in control it is often necessary to look at who has the maintenance obligations. In the case of multi-tenanted buildings, this can sometimes prove difficult.

In June of this year, the HSE published its report, ‘Asbestos Compliance in Non-LA Managed Schools’, in which it presented its findings from random inspections at 153 schools outside of local authority control in England, Wales and Scotland. The report highlighted some surprising regional variations. For example, awareness of who has the duty to manage asbestos varied from 93 per cent in the north east to only 33 per cent in the east of England. In addition, the report found that only 42 per cent of schools had properly checked the competency of any surveyor they hired to carry out asbestos surveys.

One of the key HSE recommendations from the report is for schools to make sure that their records are kept up to date and cover all of the buildings on site. It was found that there were sometimes particular issues when refurbishment work had been carried out as records were often not updated. In addition, around only half of the schools had a proper system in place to ensure that contractors and others that were working on the site who were at risk of disturbing materials that contained asbestos were provided with adequate information on any asbestos that was present. Such a system is fundamental for ensuring the safety of those working at the school, whether on a permanent or temporary basis.

The failure to keep up-to-date records and to pass information on the state and condition of a building to third parties such as contractors is a recurring issue in safety management generally. However, where there is a real risk that the material which may be disturbed could have potentially fatal consequences, it is all the more important to ensure that the information is passed on to those that need it.

If asbestos is disturbed inadvertently, perhaps because the school did not know it was present or because the information about its location and condition was not passed on to people who were at risk of disturbing it, there are a number of steps that should be taken immediately.

The insurance cover should be checked. Periodic reviews should be carried out to ensure that the cover remains adequate. However, some general policies actively exclude asbestos claims from those that have been exposed. Schools should ensure that they have insurance cover in place to protect against such claims. Alternately, they may wish to consider the government’s RPA system (risk protection arrangement), which came into force on 1 September 2014. The RPA can provide insurance cover for academies and free schools.

If the school has insurance that does cover any potential claim, it is important that the insurers are informed that people have been exposed as a matter of urgency, as they may wish to correspond with them personally. Additionally, any delay in notifying a claim could potentially reduce the quality or efficiency of the insurance cover. The school should not wait for a claim to be notified before putting its insurers on notice.

The school should also check whether the Health and Safety Executive needs to be notified under the Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations (RIDDOR). If someone has been exposed to asbestos, it is likely that the HSE will at least carry out a preliminary visit to the site to identify whether a more detailed investigation is necessary.

Involve solicitors and begin an investigation immediately. It is important that when conducting an internal investigation, it is for the purpose of instructing the solicitors, so that the whole process is carried out confidentially. This can only be done by involving external solicitors who can ensure that the process of gathering and assembling evidence is carefully managed. It also means that the school is not obliged to release this material to regulators, on the basis that it is protected by legal privilege (confidential).

If the person(s) potentially exposed are employees, then the school will need to provide support for them. As a starting point, there should be a one-to-one meeting with the HR team, and they may wish to report their exposure to their GP so it can be noted on their medical records. The school should ensure that employees are kept up to date with any steps that have been taken following the incident to make the site safe, and let them know if any feedback has been received from the HSE.

If the employee is particularly distressed, it may be appropriate for the school to consider offering to pay for counselling or other medical assistance. Although asbestos exposure can take years to manifest as a medical condition, and in some cases there may be no long-term damage at all, the psychological impact on those that may consider themselves at risk can be tremendous. If employees reside on the premises as part of their employment arrangements, consideration should be given to whether alternative accommodation may need to be arranged on a temporary or longer-term basis. 

Authors Tom Watkins and Lyn Dario are solicitors specialising in employment and regulatory law at Shulmans Corporate Solicitors, Leeds. W: www.shulmans.co.uk

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