In this article, Natalie Sellar, Managing Associate at Addleshaw Goddard, explores the legislative framework in place, consequences of non-compliance, and practical considerations.
Image credit: Marco Bernardini
Buildings containing Reinforced Autoclaved Aerated Concrete (RAAC) may now be at risk of structural collapse, with little or no notice, as the material has exceeded its design life expectancy.
The Health & Safety Executive (HSE) recently published guidance on managing the risks and has advised owners and managers of buildings to identify RAAC in their premises and seek specialist advice to assess and manage the risks associated with it.
Owners, tenants, and employers have duties to ensure the safety of their premises under the Health and Safety at Work etc Act 1974 (HSWA) and the Regulatory Reform (Fire Safety) Order 2005 (FSO).
Employers have a duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees at work, and also others, including the public and other visitors, such as contractors and suppliers. This duty extends to the extent of the employer’s control over premises which may expose any of these categories of people to risk.
Whilst safety law and property law address the issue in different ways, safety law will, in determining the extent of control, have regard to the provisions of any lease.
The responsibility as to who must rectify (or cover the costs of rectifying) any issues relating to the use of RAAC within the relevant premises will depend upon who, under the terms of the relevant lease, has the repairing obligation.
This will be an essential fact to determine in order to understand the extent of your health and safety obligations – if you control the premises, including if you have the repairing obligation, then clearly you are primarily responsible for assessing and remediating. If you do not have a repairing obligation or day to day control, then your obligation may be limited to considering how RAAC at other’s premises could impact your employees or, if you are a landlord, making sure your tenant has properly assessed and is managing any RAAC issues.
To the extent that any RAAC may cause structural collapse in the event of a fire, the Responsible Person (the person responsible for managing fire safety risks) needs to ensure this is factored into the fire risk assessment. This may involve making sure that where emergency routes and exits are likely to no longer be accessible, that suitable means of escape will still be available.
Further, the presence of RAAC could result in areas of a building not being safe to be used due to the potential risks in the event of fire, regardless of whether it has been deemed safe structurally for normal use. The location of RAAC, and how to communicate to those affected that these areas are of limits in the event of a fire, will need to be carefully considered by the Responsible Person.
The HSE’s guidance recommends employers/those in control of premises take steps to:
Employers should also assess and eliminate or adequately mitigate the associated risks. This is done by way of workplace risk assessments and fire risk assessments. Such documents should record any risks and control measures / mitigation steps.
Employers should identify both any immediate measures (such as closing access to areas of the building considered unsafe while ensuring fire safety is maintained) along with assessing what measures may be taken to eliminate the risk from RAAC in the longer term.
If a collapse resulting from the use of RAAC occurs, then any collapse involving a fall of more than 5 tonnes of material, or any floor or wall of a place of work, will trigger reporting requirements to the HSE under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), likely triggering an investigation and potential enforcement by the regulator. Injuries will also likely be reportable under RIDDOR.
Employers/those in control of premises should:
Given the wide publicity of RAAC recently, particularly within the Education sector, it will now be difficult for anyone to argue they could not reasonably have known of the risk. Now is the time for those with responsibility for building maintenance to assess their risk, and seek professional advice, if necessary, to ensure that the safety risks of RAAC and identified and managed appropriately.
For further information, please contact Adrian Mansbridge or Natalie Sellar from Addleshaw Goddard’s specialist safety team.
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