The concern to reduce the risks of asbestos causing serious disease to people who come into contact with it has led to a significant new change in the law.

From May this year, stringent new responsibilities are imposed on employers and others to carry out controls of their premises to check whether asbestos is present and, where it is present, to take appropriate steps to ensure that the risks to staff and others are kept to acceptable levels.

These new rules, contained in the Control of Asbestos at Work Regulations 2002, which came into effect on May 21, could have costly implications for many businesses.

The new regulations bring in a new ‘duty to manage’ asbestos-containing materials in ‘non-domestic premises’. This latter term will certainly include workplaces but also extends to the common parts of multi-occupancy premises such as blocks of flats and converted houses.

The duty to manage asbestos will therefore extend to landlords (or building owners) and other parties such as freeholders and managing agents.

So who has this ‘duty to manage’ and what does the duty involve?

The duty applies to any person who has any obligation in relation to the maintenance or repair of non-domestic premises or of the means of getting into or out of those premises.

The duty will also apply to any person who has control over such premises, or any part of them, even if there is no contract or tenancy which establishes their rights. So anyone who has a responsibility to maintain or repair non-domestic premises will have a duty to manage under the new regulations, as will a person who has sole control over physical access to any part of them.

The duty to manage asbestos involves a number of specific responsibilities. Primarily, though, the duty-holder is required to carry out an assessment of whether asbestos is present or may be present in the premises concerned.

The steps to be taken in this assessment process may vary from premises to premises, depending on their age, structure and general condition. The law requires only that such steps are taken as are reasonable in the circumstances.

Where the assessment causes the duty-holder to find asbestos, or conclude that it may be present in the premises, he must then consider what condition it is in.

Specifically, he must determine the risk presented by the asbestos, prepare a written plan which identifies those parts of the premises in which the asbestos is present (or may be present) and sets out measures for managing the risk that it poses.

The circumstances of the particular duty-holder will influence whether further action is appropriate. If asbestos-containing material is identified as being in good condition, and is not likely to be disturbed or damaged, then its presence might pose minimal risk.

But there will be a danger to health if there is any serious chance that the asbestos might be damaged or disturbed, thus releasing asbestos fibres into the air.

Unless they consider that the potential exposure falls below a risk action level set by the Health and Safety Executive (HSE), employers must ensure that they continually monitor the exposure of staff by measuring asbestos fibres present in the air at regular intervals.

Also, employers must ensure that they keep health records relating to each of their staff who is exposed to asbestos.

All this is likely to amount to a substantial amount of additional work and effort for employers. And bear in mind that the HSE can press for unlimited fines to be imposed for breaches of the Health and Safety at Work Act which endanger the health and safety of workers and members of the public.

What will, hopefully, be of help is the power of the HSE to give formal, written exemption from the main requirements of the regulations to individual employers. Such exemption may be granted subject to conditions and may be for a defined period.

One other small piece of good news for businesses. The removal of asbestos is a qualifying expenditure for the purposes of contaminated land tax relief. This means that businesses will now be able to claim a percentage of the cost of removing asbestos from a property.

John Davies is head of business law at the ACCA (the Association of Chartered Certified Accountants).