Asbestos legislation: It's a killer

Absestos poses very real difficulties to employers today, not just from obvious heavy exposures decades ago, but from infrequent use of supposedly safe products such as big six cement panels, asbestolux boards and the like, which can still be found in buildings countrywide today.

There are two issues for the building trade: namely, how to prevent future illness by adequate risk management, and how to pay for claims presented today relating to exposures which occurred decades ago.

In some quarters, there is still a staggering lack of compliance with the Control of Asbestos Regulations 2006

We all know that asbestos is dangerous. Its strength and indestructible heat-resistant qualities have proven to be a double-edged sword and anyone involved in refurbishment, demolition, or building services provision must be alert to the risks of its presence in older buildings. The Health & Safety Executive’s successful “Hidden Killer” campaign recognised that the new generation of workers might know asbestos is dangerous, but be totally unaware of what it looks like. In some quarters, there is still a staggering lack of compliance with the Control of Asbestos Regulations 2006, with prison terms a regular feature of HSE employer prosecutions.

Meanwhile, in response to a complaint made by the Asbestos Removal Contractors Association, the European Commission published a “reasoned opinion” in February 2011, confirming that the UK’s Control of Asbestos Regulations 2006 do not go far enough in implementing Article 3(3) a and b of the European Asbestos Directive (on the protection of workers from risks related to exposure to asbestos at work). The UK legislation currently focuses on the measurement of exposure to asbestos, without enough focus on how the material will be affected by the work itself. The UK has allowed a wider range of exemptions than was intended, from obligations relating to sporadic and low intensity exposure activities, such as those from maintenance and repair activities. The government will now need to consider beefing up three key obligations:

• to notify asbestos works to the responsible national authority
• to make a prior health assessment for workers and a new assessment every three years for as long as exposure continues
• to keep a register of workers who are or may be exposed to asbestos.

On 19 July, the employment minister Chris Grayling announced that the HSE will hold a public consultation and confirmed that the UK intends to fully implement Article 3 into domestic legislation by April 2012. Employers will need to be alert to the consultation, and to the resulting changes, and be ready to ensure that procedures are amended in the longer term.

The days of lads thinking it’s fun to throw asbestos powder snowballs are long gone, but that doesn’t mean that asbestos diseases are declining; numbers won’t peak for another 15 to 20 years. Between 2004 and 2008, there were 12,500 deaths from mesothelioma, the asbestos-specific cancer, two-thirds of which led to a damages claim against former employers. The first wave of claims brought by laggers exposed in the fifties is being replaced by a second wave of plumbers, carpenters and electricians exposed up to the eighties. With damages awards upwards of £100,000, the issue of payment is crucial.

A defendant employer needs to identify its employer liability insurers at the time of the exposure, and for its whole duration, potentially tracing decades worth of cover. Untraced insurance or gaps in an insurance history can leave the defendant with an uninsured liability. It is no defence that “everyone was doing it” or “we didn’t know back then”; the courts apply a standard of knowledge which ignores the practical realities of historic working practices. Negligence or breach of a legal duty can often be established easily and a claimant only needs to show that his employer materially increased the risk of disease to recover in full. A pro-active approach is necessary to maintain a complete employer liability insurance history. These cases often go to trial in a matter of months, and if a company receives a claim, it will not have the luxury of time to fill in gaps in insurance, so as to protect the balance sheet.

Forewarned is forearmed.

Barbara Milne is a partner in the occupational disease team at Berrymans Lace Mawer