Asbestos and the law
In addition to the general requirements of the Health and Safety at Work etc Act 1974 and the Management of Health and Safety at Work Regulations 1999, there are several sets of specific regulations dealing with work with asbestos.
- The general duty placed upon employers by the Health and Safety at Work etc Act 1974 to ensure the health, safety and welfare of employees and others will require steps to be taken to deal with the potential risks to health and safety posed by the presence of asbestos.
- Control of Asbestos at Work Regulations 2012: these regulations define those who own, occupy, manage or have responsibility for premises which may contain asbestos as duty holders.
Who is the duty holder in education establishments?
The Health and Safety Executive’s (HSE’s) Approved Code of Practice on the Control of Asbestos Regulations states that the duty holder under the regulations will be “the person in control of maintenance activities” in those premises. In maintained schools and academies, financial control of school budgets for routine maintenance, and in some cases structural works, is delegated to the governing body. The principal responsibility under the regulations for ensuring that asbestos is identified and managed therefore also rests with the employer.
Asbestos and academies
The NEU has concerns that mass academisation and an increasing number of employers will affect asbestos management in schools. When schools become academies, they lose the support of the local authority as duty holder. While some academy trusts will be experienced in asbestos management, many, especially small trusts, will not. This could lead to poor asbestos management practices.
Determining the presence of asbestos
The ‘duty to manage’ does not specifically require asbestos surveys to be carried out. The regulations require ‘reasonable’ steps to be taken to identify the potential presence of asbestos. The HSE advises that surveys may be needed, depending on what is found during an initial assessment.
The NEU believes that asbestos surveys should be carried out in all schools unless there is good reason not to do so.
For example, if a school was built wholly after 2000 than asbestos would not have been used in its construction.
Surveys should be undertaken by competent personnel. The HSE advises that these can be either external consultants or in-house staff who have received appropriate training. The NEU and joint union asbestos committee (JUAC) have concerns about the quality of many asbestos surveys. Therefore, the NEU strongly recommends that schools should only use surveyors accredited with the UK’s national accreditation body, UKAS.
Copies of surveys should be readily accessible to staff so that they can monitor the condition of their work areas and report any damage to walls/ceilings etc that contain asbestos. The NEU believes this information should be on permanent display in the staff room.
Where potential asbestos-containing materials (ACMs) are identified, the HSE sets out three options for duty holders in determining the action to be taken:
- to presume that all potential asbestos-containing materials do in fact contain asbestos unless this can be specifically ruled out
- to establish in each case whether asbestos is present or not by sampling
- to conclude that no such materials contain asbestos – this is permissible only based on strong evidence, for example records of building plans or age of the building.
Where surveys are carried out, the information obtained must be recorded in writing. It should set out whether ACMs/presumed ACMs are present, their location, condition and, if known, the type of asbestos involved.
It is important that all staff members in a school are aware asbestos is present where the ACMs are located; the duty holder has a legal responsibility to provide information on the location and condition of ACMs to anyone who is likely to disturb them. If an asbestos survey is not on permanent display, or if staff members are unsure how to interpret it, they should ask the duty holder or head teacher for the details.
Lucie Stephens whose mother, a retired teacher, died from mesothelioma in 2016, submitted Freedom of Information (FOI) requests to all local authorities in England and Wales asking for details of all schools which contained asbestos and how it was managed. Any reps or members who are not sure whether their school contains asbestos can check the response for their own local authority.
A similar exercise has been undertaken in respect of academies, although the data is less complete. Contact Sarah Lyons or Sophie Ward at the NEU for information about academy trusts.
Managing asbestos in schools
Duty holders must prepare written plans setting out how the risks from any potential asbestos materials will be managed. Such plans should cover:
- decisions and rationale on options for managing risks
- timetable and priorities for action on removal or encapsulation
- arrangements for monitoring materials to be left in place
- responsibilities of staff
- arrangements for informing and training staff, including contractors
- timetable and procedure for review of management plan
- dealing with emergency situations.
Management plans should provide information about the location and condition of presumed asbestos to all employees, to others who are liable to disturb it and to the emergency services.
Duty holders should take immediate action to deal with identified damaged/disturbed materials before preparing their plans. They should put safe systems of work in place to prevent disturbance of potential asbestos materials.
The options for managing risks from presumed asbestos will range from adopting a once-and-for-all solution whereby competent specialists identify and remove asbestos, to recording information about presumed asbestos and setting up a system of monitoring and review in case of deterioration. Removal is always the option favoured by the NEU.
Asbestos insulation boards and drawing pins
The practice of inserting drawing pins and staples into asbestos insulating boards (AIB), ceilings or walls, eg when putting up displays in classrooms, should cease as an activity. Although the risk may be small, it should be avoided.
If information is not available on the presence or not of asbestos, the precautionary approach should be adopted. As set out in the Control of Asbestos at Work Regulations, it should be assumed that asbestos is present until confirmed otherwise.
Similar precautions need to be taken before screwing display boards or interactive whiteboards into a wall.
Asbestos in gas masks
Following concerns raised by the NEU about pupils and staff handling, and wearing, Second World War military service gas masks containing asbestos, eg during history or drama lessons or school productions, the HSE advised in 2013 that this was not appropriate unless it could be clearly demonstrated that the mask/s did not contain asbestos.
Due to continued pressure from the NEU and JUAC, the HSE has since widened and strengthened the scope of its guidance to include all gas masks.
The HSE has also warned that most of the British Army ‘Brodie’ helmets issued during the First World War contain chrysotile or white asbestos in the helmet liner. It advises that it is not appropriate for children or teachers to wear or handle any artefacts that potentially contain asbestos.
Replica gas masks and Brodie helmets that do not contain asbestos are available as teaching aids.
When duty holders consider their management plans, they must determine who is going to oversee the processes and how employees are to be consulted and kept informed.
NEU health and safety reps are entitled under the 1977 Safety Representatives and Safety Committees Regulations to be consulted on matters affecting employees they represent. They have the right to be consulted about employers’ proposals to undertake work to meet the requirements of the duty to manage, and to see any records made in connection with this work or other records relevant to asbestos issues.
Dealing with asbestos in schools
NEU safety representatives should contact their NEU health and safety adviser or NEU regional/Wales office whenever the presence of asbestos is suspected. This is particularly important when the suspected material is in a poor condition since urgent consideration may need to be given to closing part, or all, of the school.
There should be full consultation between the employer, head teacher and all safety reps. NEU safety reps should be involved in all such discussions even if the asbestos is found in an area where NEU members do not work, such as the boiler room, since errors in removal might result in asbestos contamination of a wider area of the school.