6. Hazardous substances

Changes and developments since last year

• Dust: In September 2011, the HSE reissued its guidance Controlling airborne contaminants at work: a guide to Local Exhaust Ventilation (LEV).

• The TUC has updated its guidance for health and safety reps: Dust in the workplace.

• Asbestos: The Hidden Killer campaign is to be reinstated during 2012, although the form of the revived campaign is not yet known.

• The Control of Asbestos Regulations 2012 became law on 6 April 2012, replacing the 2006 Regulations.

• In 2012, the HSE issued updated Guidance on Legionnaires’ disease.

Control of substances hazardous to health

The Control of Substances Hazardous to Health Regulations 2002 (COSHH 2002) cover the control of risks from harmful chemicals and other dangerous substances, including biological agents. The regulations apply to:

• chemical substances such as paints, cleaning materials, metals, pesticides and insecticides;

• biological agents such as pathogens or cell cultures;

• carcinogens (cancer-causing substances);

• substances that have been assigned workplace exposure limits; and

• dusts.

They cover toxic, harmful, corrosive and irritant substances and they prohibit the use of several very dangerous substances for certain purposes (listed in Schedule 2 of the regulations.)

They do not apply to asbestos or lead. There are separate regulations to deal with these hazards.

A key requirement under COSHH is the duty to carry out risk assessments (see Chapter 3). Regulation 6 says employers should not carry out work that is liable to expose employees to any substances hazardous to health unless they have made a suitable and sufficient assessment of the risks. All employers must carry out a risk assessment, record any significant findings and review the assessment regularly.

Under the regulations, the risk assessment must consider a specific list of items including the hazardous properties of the substance, information provided in safety data sheets, and any workplace exposure limit (WEL).

Regulation 7 sets out what an employer must do once a potential risk to health has been identified. Employers must ensure that the exposure of workers is either prevented or adequately controlled, by working through a hierarchy of measures.

The emphasis is on prevention. Employers who fail to consider firstly whether exposure can be prevented are in breach of the regulations. The best way to comply with this requirement is to completely eliminate the use or production of substances hazardous to health in the workplace.

The regulations list the control measures to be applied in order of priority, where elimination or substitution is not possible. These are:

• the design and use of appropriate work processes, systems and engineering controls and the provision and use of suitable work equipment and materials;

• the control of exposure at source, including adequate ventilation systems and appropriate organisational measures;

• lastly, and only if adequate control cannot be achieved by other means, the supply of suitable personal protective equipment.

Regulation 7 imposes an absolute duty on employers to prevent exposure to hazardous substances, as the Court of Appeal’s decision in the following case demonstrates:

The judge in the Naylor case cited the Dugmore case below as crucial in clarifying the regulations:

The ruling confirmed that the duty to control exposure is absolute. Employers cannot argue that it is not “reasonably practicable” to introduce control measures. The qualification of “reasonable practicability” refers only to prevention and not to the secondary duty of adequate control.

Employers must ensure that any control measures or personal protective equipment (PPE) are used properly and that employees make full and proper use of any control measures or PPE provided (Regulation 8).

Employers must keep control measures in good working order and repair and ensure that regular tests and examinations of equipment are carried out and appropriate records kept (Regulation 9).

Regulation 10 requires employers to monitor exposure to hazardous substances in particular circumstances. Records must be kept of personal exposures for at least 40 years, and in other cases for at least five years.

Health surveillance is required under Regulation 11 where employees have been exposed to one of the substances listed in Schedule 6 of the regulations, or where:

• the exposure of employees is such that an identifiable disease or adverse health effect may be related to the exposure;

• there is a reasonable likelihood that the disease or effect may occur under the particular conditions of the work; and

• there are valid techniques for detecting indications of the disease or the effect.

Employers should keep health surveillance records for at least 40 years.

Under Regulation 12, employees must be given sufficient information, instruction and training about the risks involved and the precautions that should be taken. They are also entitled to see the results of environmental monitoring and the collective results of any health surveillance.

Regulation 13 requires employers to deal with accidents, incidents and emergencies. Emergency procedures may be triggered by a serious fire, spillage or flood of corrosive agent liable to make contact with skin; a failure to contain biological or carcinogenic agents; or an acute process failure that could lead to a sudden release of chemicals. There are additional controls set out in the regulations for work with carcinogens (cancer-causing substances) and biological agents.

The COSHH ACOP was last revised in 2005. The HSE accept that an update is needed, especially to take account of changes in the classification and labelling of chemicals (see below). The planned revisions have reportedly been delayed as a result of delays to draft Biological Agents and Genetically Modified Organisms (Contained Use) Regulations, and because of extra work needed to implement Professor Löfstedt’s recommendation that the HSE review all 53 of its ACOPs. The government required the initial phase of this review to have been completed by June 2012 (See Chapter 12: Löfstedt review).

Codes of Practice and guidance

Asthma

Successful campaigning by unions resulted in the HSE publishing an Approved Code of Practice (ACOP) on the control of occupational asthma. It accompanied the ACOP and guidance for COSHH 2002.

The risk assessment procedure in Regulation 6 of COSHH 2002 (see Chapter 3) also applies to occupational asthma. Employers must protect the health of employees who have developed occupational asthma, even though they may develop symptoms at a very low, even undetectable, level of exposure.

The asthma ACOP says employers should review risk assessments regularly, and that there should be an immediate review whenever a case of occupational asthma is confirmed. Cases of occupational asthma notified by a doctor in writing must be reported to the enforcing authority under RIDDOR 1995 (see Chapter 10: Recording and reporting accidents).

The asthma ACOP says that exposure to substances with the potential to cause occupational asthma should be prevented. If prevention is not reasonably practicable, the employer should control exposure.

All employees exposed, or liable to be exposed, to a substance that may cause occupational asthma should be under suitable health surveillance. Employees should be provided with suitable and sufficient information about asthma and receive proper training.

Evidence of occupational asthma

A report by the Royal College of Physicians in April 2012 says that around one in six cases of asthma in people of working age is either caused or made worse by work. New guidance advises hospital doctors to question patients with respiratory problems about their job, the materials they work with and whether their symptoms improve when they are not at work. In this, the RCP is catching up with the TUC, because unions have been warning of the extent of occupational asthma in the UK since at least 1995.

Royal College of Physicians report, April 2012, available at: www.rcplondon.ac.uk/sites/default/files/concise_guidance_diagnosis_management_and_prevention_of_occupational_asthma.pdf

Dust

Workplace dust causes many serious health problems, including cancers of the lungs, throat and nose and other lung conditions called Chronic Obstructive Pulmonary Disease (COPD), which includes chronic bronchitis and emphysema.

The main regulations that apply to workplace dust are the Control of Substances Hazardous to Health Regulations 2002.

In 2011, the TUC updated its guidance for health and safety reps, Dust in the workplace. The TUC advises that under the COSHH Regulations, employers have a duty to work through the following order of priority when managing risks relating to dust:

• eliminate the use of the harmful substance and replace with a safer one;

• use a safer form of the product, such as a paste rather than a powder;

• change the process to emit less dust;

• enclose the process so that the dust does not escape;

• extract the dust near the source;

• place as few workers in harm’s way as possible; and

• provide free PPE such as a respirator. The PPE must fit the wearer.

In other words, employers cannot protect workers simply by giving them face masks and continuing to let them work in dusty conditions. Instead, the first step is always to examine how to stop the dust getting into the air in the first place, either by using other materials, or by introducing ways of keeping dust out of the atmosphere (for example, using ready-mixed dough instead of flour in bakeries).

The TUC believes the standards used for assessing workplace dust exposure to be totally inadequate. It argues that there is clear scientific evidence that the current UK limits for inhalable and respirable dust of 10mg/m³ and 4 mg/m³ respectively should be much lower.

Legionnaires’ disease

Legionnaires’ disease is an airborne disease caught by inhaling small droplets of contaminated water. It is not contagious and is not known to spread directly from person to person. It cannot be caught by drinking contaminated water.

Legionella bacteria are common in natural water sources such as rivers, lakes and reservoirs, usually in low numbers. The risk of the disease is present when water is stored or re-circulated in man-made water systems. Contamination can develop and spread in purpose-built systems like cooling towers, evaporative condensers, hot and cold water systems and whirlpool spas, humidifiers, air-washers, emergency showers and indoor water fountains. Problems develop when bacteria spread quickly through water-based systems in warm temperatures (between 20°C to 45°C).

In 2012, the HSE updated its guidance Legionnaires’ disease: a brief guide for dutyholders. It explains the employer’s duty to ensure that a risk assessment of the water system is carried out by a competent person and kept up to date. Safety reps are entitled to see the risk assessment and the results of any monitoring and inspection. The risk assessment must include:

• management responsibilities, including the name of the competent person and a description of the system;

• any potential risk sources of the bacteria;

• any controls currently in place;

• monitoring, inspection and maintenance procedures;

• records of monitoring results, inspections and checks.

The employer’s primary obligation is to prevent the risk of Legionella arising in the first place, for example by considering replacing a wet cooling tower with a dry air-cooled system.

Under the guidance, the employer must:

• ensure that the release of any water spray is properly controlled;

• avoid water temperatures and conditions that encourage the growth of micro-organisms;

• ensure water cannot stagnate anywhere in the system (keeping pipe work as short as possible, or removing redundant pipes);

• avoid materials that encourage the growth of Legionella;

• keep the system and the water clear; and

• treat water to kill Legionella or to limit their ability to grow.

Needlestick or sharps injuries

In March 2010, a new EU Directive to protect nurses, midwives and health care assistants from needle stick injuries and infections was published following lengthy campaigning by unions, especially health workers union UNISON.

The directive implements a 2009 framework agreement which includes guidance for training, support and prevention of needlestick injuries and should make the use of safe needles routine across the EU.

The HSE provides guidance to workers on what to do in the event of a “sharps” injury, as well as guidance to employers on their obligations. Employers must:

• carry out a risk assessment and act on it;

• ensure standard infection control precautions are in place;

• ensure all workers under the employer’s control have training and information on the safe use of sharps;

• where reasonably practicable, replace sharps with safer devices;

• put in place suitable clinical waste disposal procedures, including providing sharps containers, and ensure procedures are followed;

• provide access to occupational health advice and immunisation where appropriate;

• have speedy procedures for response to a sharps injury, including speedy access to appropriate prophylaxis treatments; and

• record injuries in the accident book and report to the HSE any infection caused by work, or any injury known to present an infection risk.

Dermatitis and other skin conditions

Dermatitis is a skin disease sometimes called eczema. Inflammation of the skin is the most common sign. It can cause itching, cracking, blistering and ulceration, and make the skin red, sore, flaky and scaly. In the worst cases, occupational dermatitis can lead to severe health problems.

There are two main kinds of dermatitis:

• Irritant contact dermatitis, caused by substances that physically damage the skin such as wet work, dyes, and shampoos.

• Allergic contact dermatitis, caused when the body’s immune system becomes “sensitised” to a particular substance, like the latex in some rubber gloves.

Sensitisation can happen suddenly even when a worker has been exposed to a substance for years. A worker who has been sensitised will have an allergic reaction to even tiny amounts of the substance, and may also become allergic to related substances.

The most commonly reported agents causing dermatitis include:

• rubber chemicals and materials, such as rubber gloves;

• wet work; and

• shampoos, soaps and cleaners.

Dermatitis can develop immediately or over a period of weeks or months, depending mainly on the agent and its strength. Occupational dermatitis is one of the most widespread causes of ill-health at work, with around 40,000 new cases each year, according to the HSE.

Some sectors present a particular risk, including hairdressing, catering, cleaning, printing, health services, chemicals, engineering and construction.

Health workers’ union UNISON advises workers to take simple precautions:

• avoid direct contact with cleaning products, for example by using a dishwasher rather than washing up;

• protect the skin, for example by wearing suitable gloves (remembering that latex can itself cause occupational dermatitis and allergy); and

• check hands regularly for early signs, such as itchy, dry or red skin.

The employer’s duty to protect workers from the risk of dermatitis is based on the Control of Substances Hazardous to health (COSHH) Regulations . The employer must:

• conduct a risk assessment;

• follow a hierarchy of control measures to respond to the risk:

- eliminate the chemical altogether, for example by changing the work process, and only if this is not possible,

- substitute the chemical for a safer one. Only if this is not possible:

* enclose the process;

* provide adequate ventilation ;

• only having already worked through all the alternatives for eliminating or reducing the risk can the employer as a last resort rely on PPE (such as gloves and facemasks), which the employer must ensure fit properly and are being used correctly.

Where necessary, the employer must introduce a system of health surveillance.

The employer must provide information and training to all staff about the risks of dermatitis and how to prevent it.

Occupational dermatitis should be reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 1995 (see Chapter 10: Reporting).

Latex allergy

There are many cases of workers suffering an allergic reaction to latex-lined gloves. Employers must ensure their workers are protected from exposure to harmful substances like latex. See, for example, the groundbreaking case of UNISON member Alison Dugmore.

British Safety Council campaign

In 2011, the British Safety Council launched a new safety campaign: Changing the habits of a lifetime. The first stage of the campaign is targeting worker habits in relation to hand and arm protection.

You can find details at: http://saferhabits.com/?page_id=73.

Chemicals information and packaging

The Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 (CHIP4, 2009) require chemical substances and preparations used at work to be classified according to their principal hazard. The danger categories are: explosive, oxidising, extremely flammable, highly flammable, flammable, very toxic, toxic, harmful, corrosive, irritant, sensitising, sensitising by inhalation, sensitising by skin contact, carcinogenic, mutagenic, toxic for reproduction and dangerous for the environment.

Suppliers of chemicals must give information about the hazards on labels (if the chemical is supplied in a package) and they must package chemicals safely.

Note that the laws that require a safety data sheet to be provided have been transferred to REACH — the European Chemicals Strategy.

The CHIP 4 Regulations impose obligations regarding the packaging of dangerous substances. Labels must be clear, securely fixed to the package, easily read, and the symbol used must stand out.

The packaging of certain substances and preparations must have adequate child-resistant fastenings or tactile warning devices or both.

Replacement of the CHIP Regulations with the CLP Regulation

The CHIP 4 Regulations are gradually being replaced by the European Regulation on Classification, Labelling and Packaging of Substances and Mixtures — known as the CLP Regulation.

The CLP Regulation implements the United Nations’ Globally Harmonised System (GHS). At present there are different laws across the world controlling how the hazardous properties of chemicals are described and how this information is given to those using them. This can be confusing because one chemical can have different descriptions in different countries. For example, a chemical can be labelled as flammable in one country but not in another. The GHS aims to provide more uniform global criteria for classifying and identifying hazardous substances.

The CLP Regulation is directly-acting in all EU member states. This means that it does not need to be enacted in UK regulations in order to become law. It became law in January 2009 but it is being introduced over a lengthy transitional period. The CLP Regulation became mandatory on 1 December 2010 for substances, but will not come into force until 1 June 2015 for mixtures. At that point the CHIP 4 Regulations will be repealed in full in the UK.

During the current period of dual running of CHIP 4 and CLP, suppliers can choose whether to classify and label according to CHIP 4, using CHIP symbols (black on orange squares), or CLP, using CLP symbols (black symbols on white with a red diamond-shaped border).

European chemicals strategy (REACH)

The Registration, Evaluation and Authorisation of Chemicals Regulations (REACH) started coming into force in 2007. REACH is being phased in over 11 years. The REACH regulations will ensure chemicals are properly tested before going on the market. REACH means that the burden of proof is on employers to demonstrate that a chemical can be used safely. Everyone in the supply chain will have to ensure the safety of the chemical substances they handle and will have better information to do this.

Although REACH is primarily aimed at protecting the environment and consumers, it has implications for workplace safety. Unions broadly welcome REACH, although there have been concerns about its limitations and its implications for health and safety legislation.

In September 2010, the TUC issued guidance reminding safety reps to make sure employers are meeting their new legal duties on workplace chemicals under REACH and published an online safety rep guide. The guidance advises safety reps in firms using chemicals to check with their employer whether:

• any classifications need changing under the new rules

• chemicals are being labelled correctly in line with the rules

• all uses are covered by updated safety data sheets

• all necessary risk assessment measures have been implemented.

Safety Data Sheets

The law on safety data sheets has been moved from CHIP 4 to REACH. An HSE leaflet, REACH and Safety Data Sheets, explains when a safety data sheet is required (www.hse.gov.uk/reach/resources/reachsds.pdf). Safety data sheets must be dated and must contain information under the following headings:

• identification of the substance/mixture and of the company/ undertaking;

• identification of the hazards;

• composition or information about the ingredients;

• first-aid measures;

• fire-fighting measures;

• accidental release measures;

• handling and storage;

• exposure controls or personal protection;

• physical and chemical properties;

• stability and reactivity;

• toxicological information;

• ecological information;

• disposal considerations;

• transport information;

• regulatory information; and

• other information.

Major accident hazards

The Control of Major Accident Hazards Regulations 1999 (COMAH) apply to sites where particular quantities of toxic, highly flammable or otherwise dangerous substances are present (Regulation 3). The substances and threshold quantities are set out in Schedule 1. The regulations do not apply to defence establishments, or to substances which present ionising radiation hazards.

The operator, defined as the person in control of the site, must take all necessary measures to prevent major accidents and limit their consequences to people and the environment (Regulation 4). They must prepare and keep a document setting out their major accident prevention policy (MAPP). This must make reference to the safety management system that will be used to put the policy into place (Regulation 5).

The competent authorities (the HSE and Environment Agency acting jointly in England and Wales, and the HSE and Scottish Environmental Protection Agency in Scotland) must be notified of the name and address of the operator; the address of the establishment; the name or position of the person in charge, and details of dangerous substances on site and environmental details (Regulation 6).

There are two thresholds set out in the regulations. If enough dangerous substances are present, additional top-tier duties apply. These are set out in Regulations 7-14. A safety report detailing the safe operation of the site and arrangements for preventing major accidents must be submitted to the competent authority. This should be revised and reviewed at least every five years, or sooner if significant changes have been made or there is new knowledge about safety matters (Regulation 8).

Operators must prepare an emergency plan to deal with the on-site consequences of a major accident (Regulation 9). The regulations specifically require operators to consult safety representatives about the preparation of the on-site emergency plan. Operators must provide information to the local authority in order for it to prepare an off-site emergency plan (Regulation 10). Emergency plans must be reviewed and tested at least once every three years (Regulation 11).

Individuals who could be affected by a major accident at the establishment, such as those living in the vicinity, must be given information, including details of the dangerous substances, the possible major accidents and their consequences, and what to do in the event of an accident (Regulation 14). Safety reports are put in public registers.

Gas storage in depleted reservoirs is within the scope of the COMAH Regulations 1999, following a European Commission review. Previously, this was regulated by HSE under the Borehole Sites and Operations Regulations 1995.

Plans for a new directive

The COMAH Regulations are based on a European Directive known as the Seveso Directive (96/82/EC). A replacement directive is being planned, which the HSE expects to be adopted in late 2012. The new plans are designed to take account of the changes in the chemical classification system from CHIP 4 to the CLP Regulation. The new directive is expected to be brought into UK law via new regulations with effect from 1 June 2015, to coincide with the date when the CLP Regulation will replace CHIP 4 in all respects.

The Focus on Enforcement Initiative 2012

In May 2012, the government (BIS) launched its Focus on Enforcement initiative, in which it invited companies in the chemicals sector to feed in their experiences of working with national regulators and local authorities on the enforcement of the COMAH Regulations, anonymously if they prefer. The object of the consultation exercise is to “reduce enforcement burdens and share best practice”. The Chemical Business Association has welcomed the review, identifying it as an opportunity to “explore how the burden and costs of regulatory costs can be reduced”. Unlike HSE consultations, this BIS consultation exercise asks only for the views of major hazard firms, as opposed to the views of site workers and neighbouring residents, in other words those most at risk from a major hazard.

Buncefield explosion report

A report published in February 2011 into the huge explosion at the Buncefield Oil Storage Depot concluded that fundamental safety management failings were the root cause of the disaster. Five companies were fined a total of £9.5 million for their part in the explosion and five-day fire. With estimated costs exceeding £1 billion, it was Britain’s costliest industrial disaster. Failings included:

• an absence of clear and positive safety leadership or board level involvement and competence to ensure major hazards were properly managed;

• lack of clear understanding of major accident risks and the safety critical equipment and systems designed to control them;

• lack of systems or culture that should have been in place to detect signals of failure in safety critical equipment and to respond to them quickly and effectively;

• lack of time and resources for process safety; and

• lack of effective auditing systems to test the quality of management systems and to ensure that these systems are actually being used on the ground.

The Dangerous Substances and Explosive Atmospheres Regulations 2002

The purpose of the Dangerous Substances and Explosive Atmospheres Regulations 2002 (DSEAR) is to protect workers from risk of fire and explosion linked to dangerous substances and potentially explosive atmospheres. The HSE has published a Code of Practice and guidance to accompany the regulations.

The DSEAR Regulations apply to workplaces where any substance or mixture of substances with the potential to create a risk from “energetic (energy-releasing) events”, such as fire and explosions, is present. Dangerous substances are substances or preparations that are explosive, oxidising, extremely flammable, highly flammable or flammable. They include any dust, whether in the form of solid particles or fibrous materials, petrol, liquefied petroleum gas, paints, varnishes and solvents. An explosive atmosphere is an accumulation of gas, mist, dust or vapour, mixed with air, which has the potential to catch fire or explode.

Employers must carry out a risk assessment whenever a dangerous substance is or may be present at the workplace (Regulation 5).

Employers must eliminate or reduce all risks, so far as reasonably practicable. Where risk is not eliminated, employers must to apply measures to control the risk and mitigate any detrimental effects (Regulation 6).

Places where explosive atmospheres may occur must be classified as hazardous or non-hazardous (Regulation 7). Hazardous places must be classified into zones based on the frequency and duration of an “explosive atmosphere”. The regulations stipulate mandatory requirements for all equipment and protective systems for use in hazardous places. Hazardous places must be marked with signs at their points of entry.

Employers must make arrangements to deal with accidents, incidents and emergencies (Regulation 8). These include suitable warning and communication systems, escape facilities, emergency procedures, equipment for personnel dealing with the incident and practice drills.

Employers must provide employees with precautionary information, instruction and training where a dangerous substance is present at the workplace (Regulation 9).

Containers and pipes used at work for dangerous substances must clearly identify their contents (Regulation 10). The storage of petroleum is now covered by the DSEAR.

There are separate regulations on the manufacture and storage of explosives: the Manufacture and Storage of Explosives Regulations 2005 (MSER).

Asbestos

New regulations, the Control of Asbestos Regulations 2012 (the 2012 Regulations) became law on 6 April 2012. They replace the Control of Asbestos Regulations 2006. The 2012 Regulations are very similar to the old regime but they contain some minor changes which relate to certain exemptions for so-called “low risk” work.

The 2012 Regulations were enacted because the European Commission decided that the UK had failed to fully implement the Asbestos Worker Protection Directive. Specifically, the European Commission concluded that certain exemptions for “sporadic and low intensity work” under the old regime were wider than the Directive had intended. The 2012 Regulations narrow the kinds of work covered by the exemptions.

Under the old regime there were two categories of work — licensed and non-licensed. “Non-licensed” work was exempt from certain requirements, including the requirement to notify the enforcing authority responsible for the site. Under the 2012 Regulations, a third category of work has been introduced, known as “notifiable non-licensed work”.

As a result of the change, some employers who carry out some kinds of low intensity, short duration work are no longer exempt from the need to:

• notify work to the relevant enforcing authority;

• carry out health assessments (by April 2015); and

• keep a register of those workers exposed (or who could be exposed) to asbestos.

It is important that safety reps note that the basic regime for the control of asbestos remains unchanged by the introduction of the 2012 Regulations. HSE guidance on the changes brought in by the Asbestos Regulations 2012 is available at: www.hse.gov.uk/asbestos/regulations.htm.

The regulatory regime for controlling risks from asbestos

Anyone responsible for the maintenance of non-domestic premises has a duty to manage the asbestos in them, to protect anyone using or working in the premises from the risks to health caused by exposure to asbestos (see The duty to manage). If a duty-holder wants building or maintenance work done on the premises or on plant or equipment that may contain asbestos, it must identify where it is, its type and condition, assess the risks and manage and control those risks.

There is still a control limit for asbestos, and it remains 0.1 fibres per cubic centimetre (f/cm³) of air measured over four hours for all types of asbestos (Regulation 2). The HSE emphasises that “the control limit is not a “safe” level, and exposure from work activities involving asbestos must be reduced to as far below the control limit as possible. Respiratory protective equipment must be ignored when assessing whether the control limit has been reached.

Training is mandatory for anyone liable to be exposed to asbestos fibres at work. This includes maintenance workers and others who may come into contact with or disturb asbestos, such as cable installers, as well as those involved in asbestos removal work.

The duty to manage asbestos

Employers, owners of commercial premises and managing agents have a legal “duty to manage” asbestos in the premises they own or control (Regulation 4). Employers must go through five stages to comply with the law. They must:

• inspect the workplace (or appoint someone else competent to do this) and find out whether asbestos is present;

• assess the risks from any asbestos;

• manage the risk and prepare and plan; and

• monitor arrangements.

Employers must not carry out demolition, maintenance or any other work which exposes, or may expose, their employees to asbestos unless they have found out the type and condition of asbestos present.

Employers must carry out a suitable and sufficient risk assessment and record their findings before any work is carried out (Regulation 6). They should not arrange to work with asbestos unless a written plan of work detailing how that work is to be carried out has first been prepared (Regulation 7).

Employers must give adequate training, information and instruction to all employees who are, or may be, exposed to asbestos (Regulation 10). HSE guidance says that “training for safety representatives and elected representatives of employee safety will need to be appropriate to their role.” It specifies that safety reps are entitled to receive:

• a copy of the current assessment for the work;

• a copy of the plan of work;

• details of any air monitoring strategy and results;

• maintenance records for control measures;

• personal information from health records;

• a copy of the individual’s training record; and

• the results of any face-fit test for asbestos respiratory protective equipment (RPE).

It adds that at each stage, safety reps are entitled to be consulted.

Anyone who certifies premises as safe for re-occupation following licensed asbestos work must be accredited by the United Kingdom Accreditation Service (UKAS) (Regulation 20(4)).

Fighting for compensation and better treatment for asbestos-related diseases

Compensation Act 2006

As a result of union campaigning, the Compensation Act 2006 was enacted. It states that where workers have been exposed to asbestos by more than one employer and developed asbestos-related illnesses, they can claim compensation from all the employers concerned. They do not have to prove which exposure was to blame. In legal terms, each employer is jointly and severally liable.

The Child Maintenance and Other Payments Act 2008 included a new Diffuse Mesothelioma Scheme, which means that the Department for Work and Pensions (DWP) will pay a lump sum to anyone in the UK diagnosed with mesothelioma (or the dependent of a deceased person who died of an asbestos-related disease), even when they were not directly exposed to asbestos in the workplace. The scheme covers people not previously eligible for help, including the self-employed, those exposed to asbestos in the environment and to family members exposed via workers’ clothing.

New support scheme for mesothelioma victims

A new support scheme for newly diagnosed victims of mesothelioma was announced by the government at the end of July 2012. The scheme will allow around 3,000 mesothelioma victims across the UK who had until now been unable to claim compensation because they could not trace a liable employer or employers’ liability insurer, to receive approximately £300m in payments in the first ten years. These payments will be in addition to the £200m the insurance industry already pays each year in compensating mesothelioma sufferers.

The move has been welcomed by the TUC although it is calling for wider coverage. TUC general secretary Brendan Barber said: ‘This new system will at least help provide some financial security to mesothelioma victims and the families of those who develop this devastating disease, but it falls well short of the scheme proposed by ministers a few years ago. Compensation should be available to all those who cannot get justice because, through no fault of their own, their insurer cannot be traced. While this scheme will come as a relief to those with mesothelioma, it will provide no help to workers who develop other cancers or life-threatening diseases, and who find themselves with no means of claiming compensation.”

Mesothelioma litigation

In April 2012, the Supreme Court delivered is judgment in long-running asbestos litigation brought by four insurance companies that had been disputing their liability to pay compensation to victims (Durham v BAI (Run Off) Ltd [2012] UKSC 14). This case turned on the wording of employers’ liability insurance contracts in place when the victims were exposed to asbestos fibres at work several decades ago. The policy wording required the worker to have “sustained” or “contracted” mesothelioma during the term of the policy in order to trigger the insurance cover. The insurers argued that the disease was not “sustained” or “contracted” when the fibres were inhaled, but instead when the disease appeared, which is typically some thirty years after inhalation. Mesothelioma is a “long latency” disease which can lie dormant for decades.

The Supreme Court rejected the insurers’ arguments. The Court said that a broad approach is needed in interpreting policy terms. Rather than simply looking at the literal meaning of words like “sustained” or “contracted”, a Court should consider the whole language and purpose of the insurance contract.

The basic purpose of the policy was to insure, amongst other things, against the risk of workers developing an industrial disease, through exposure to contaminants during the cover period. This meant that the only possible conclusion was that when the policy talked about a disease being “sustained” or “contracted”, it must have been referring to the employee’s exposure to the fibres, because it was this exposure that led, albeit much later, to the development of the full-blown disease. As Lord Clarke noted, any other result would be “remarkable”. Although the case concerned mesothelioma, it also has implications for sufferers of other long latency industrial diseases.

TUC call for Employers Liability Insurance Bureau

The TUC has welcomed the judgment in Durham, but points out that in practice, because the disease lies dormant for so many years, many victims are unable to get compensation because the employer no longer exists and the insurer cannot be traced. Even though there is an obligation to retain employers liability insurance certificates for 40 years, traceability has been a practical barrier to compensation for many claimants.

The TUC is urging the government to set up an Employers Liability Insurance Bureau, originally proposed in a consultation carried out in 2010. The 2010 proposals had two objectives, making it easier to trace employers’ liability insurance policies and establishing a fund of last resort where an employer is insolvent and insurers cannot be traced. The consultation led to the setting up of the Employers Liability Tracing Office in May 2011. This is a central electronic search and storage system for employers’ liability insurance policies. However, the system only includes new and renewed policies, so it will not help those whose policies are already untraceable because the exposure took place decades ago.

Liability for “low level” exposure confirmed by Supreme Court

In March 2011, the Supreme Court upheld awards of compensation to the families of Dianne Willmore and Enid Costello, who died from mesothelioma after exposure to low levels of asbestos. Dianne Willmore died aged 49, following exposure while a pupil at school, and Enid Costello was exposed while working as a secretary.

The Court confirmed that employers will still be liable, even if the exposure is to “low levels” of asbestos, as long as the asbestos made a “material contribution” to the cause of death (Sienkiewicz (Administratrix of the Estate of Enid Costello (deceased) v Greif (UK) Limited and Knowsley Metropolitan Borough Council v Willmore [2011] UK SC10).

Parent company liable for asbestos claim

In April 2012, an important ruling by the Court of Appeal decided for the first time, that a parent company owed a direct duty of care to a victim of asbestos-related disease who was employed by a subsidiary. The parent, Cape PLC, was not held liable just because it was a parent company. However, the Court provided a checklist of the circumstances that may trigger responsibility by a parent company for the health and safety of employees of the subsidiary. As the case has general importance for all workers injured or made ill as a result of an employer’s breach of health and safety law, these factors are listed in Chapter 1: Common Law.

In this case, the claimant, Mr Chandler, was exposed to asbestos while working in a brick manufacturing business in the late 1950s and early 1960s. By the time he developed asbestosis, his old employer no longer existed. There was no insurance policy in place over the period of exposure to respond to the claim. The Court heard evidence that the parent company, Cape PLC, maintained some control over the subsidiary’s business and was fully aware of systemic failures on site that allowed asbestos dust to escape. The parent company knew about the risks to health this triggered. It involved itself in health and safety issues at the subsidiary and had superior knowledge about the nature and management of asbestos risks. The Court decided that the parent company was in breach of a duty that it owed to the employees of the subsidiary because it failed to advise the subsidiary what steps should be taken to create a safe system of work and failed to ensure that those steps were taken (Chandler v Cape PLC [2012] EWCA Civ 525).

Case paves the way for higher compensation for elderly victims

In February 2012, the High Court gave an important ruling on compensation for pain and suffering that could result in higher levels of compensation for elderly victims of long latency industrial diseases like mesothelioma. Dennis Ball, aged 92, was awarded £50,000 compensation for pain and suffering after developing the disease following his work for the National Coal Board and British Coal Corporation. The defendant — the Secretary of State for Energy and Climate Change — had argued that Mr Ball should receive a lower level of compensation because of his age and short life expectancy. This ruling confirms that regardless of the amount of time an individual is expected to live following diagnosis, they should be appropriately compensated for their pain and suffering (Dennis Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145).

Pleural plaques

Unions have continued to campaign for legislation to redress a House of Lords judgment on pleural plaques. Pleural plaques are areas of thick scar tissue in the chest lining and diaphragm, indicating exposure to asbestos dust and fibres.

In October 2007, the House of Lords (now Supreme Court) upheld a Court of Appeal decision preventing people with pleural plaques from claiming compensation (Rothwell v Chemical & Insulating Co Ltd and others [2007] UKHL 39). The Scottish Parliament reversed this decision by passing the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (the Damages Act), which came into force in June 2009. The Act enables victims suffering from pleural plaques to bring personal injury claims for compensation.

Many insurers opposed the Damages Act. They brought a legal challenge arguing that the new law breached the insurers’ property rights under the European Convention on Human Rights and would open the way to a flood of claims. The Court of Sessions rejected these arguments in a judgment delivered in April 2011, welcomed by the Scottish TUC.

In March 2011, the right to compensation for pleural plaques was also restored in Northern Ireland, with the passing by the Northern Ireland Assembly of the Damages (Asbestos-related Conditions) Bill NI. In Northern Ireland, people suffering from pleural plaques have been able to seek compensation from 14 December 2011. This leaves the government in England and Wales isolated in continuing to fail to legislate for compensation for sufferers of pleural plaques.

The Labour government ruled out amending the law, and instead announced that it would pay a £5,000 lump sum under an extra-statutory scheme to workers who already had claims lodged at the time of the legal ruling. This means that pleural plaques sufferers in England and Wales who had not already lodged a legal case and people who develop pleural plaques in the future will not be able to claim compensation.

Hidden Killer Campaign

The Hidden Killer campaign to raise awareness of the risks posed by asbestos was one of HSE’s most successful campaigns. It ran from 2008 to 2010, but it was shelved as a result of cuts to the HSE budget. The campaign highlighted how workers most at risk of exposure to asbestos are those most likely to disturb or damage it and breathe in the fibres, such as plumbers, joiners and electricians. It emphasised how anyone working on a building built or refurbished before the year 2000 could be exposed to asbestos without even knowing it. In the UK, around 500,000 non-domestic buildings contain asbestos and it remains a very real threat.

Unions, including construction union UCATT, fought for the reinstatement of the campaign and in late 2011, the HSE confirmed that it is looking at how to revive it, although it is not yet clear what form a revived campaign might take, or what resources will be made available. The HSE has also developed an asbestos learning package for delivery by college lecturers and vocational education providers. It is available at: www.hse.gov.uk/asbestos/learning-package/index.htm.

In an attempt to bridge its funding gap, in September 2011, the HSE ran an ‘Asbestos Training Pledge’ initiative, asking training providers to pledge up to 4,000 hours of free face to face training and 4000 hours of on-line training.

Asbestos in schools

In December 2011, the HSE published an asbestos checklist for schools. It is available at: www.hse.gov.uk/services/education/asbestos-checklist.pdf

In March 2012, the Department for Education updated its guidance for schools on the management of asbestos. It is available at: www.education.gov.uk/schools/adminandfinance/schoolscapital/buildingsanddesign/a00203143/managingasbestos.

Both initiatives were in response to HSE inspections carried out in 2010-11 of the management of asbestos in non-local authority schools. The inspections resulted in formal enforcement action at 17% of schools visited and informal advice at a further 67%. The HSE confirmed that the compliance level was “broadly similar to that found in a survey and inspection programme involving LA-controlled schools in 2009-10”. The results are exceptionally worrying for teaching unions since asbestos is believed to be present in around 75% of UK schools. Schools will no longer receive proactive inspections as a result of the government’s classification of schools as “low risk” workplaces (see Chapter 2: Enforcement).

Many unions have issued detailed guidance to members on the employer’s legal duty to control asbestos risks in the workplace. Given these risks, many reps believe that removing all asbestos from the workplace is the best approach.

Research link between occupational cancer and asbestos

New research published on behalf of the HSE in April 2012 has shown that the heart disease risk for asbestos workers is significantly greater than that of the general population. A link to the research can be found at: http://oem.bmj.com/content/69/6/417

In February 2012, the TUC published Occupational cancer — a workplace guide. The guide points out that work-related cancers kill one person in the UK every thirty minutes around the clock. It is available at: www.tuc.org.uk/extras/occupationalcancer.pdf

Lead

The Control of Lead at Work Regulations 2002 (CLAW) apply to any kind of work activity where there is a risk of exposing workers and anyone else to lead. The lead must be in a form that can be inhaled, ingested or absorbed through the skin.

Regulation 2 sets out occupational exposure limits, action levels and blood suspension levels.

The blood suspension level is the level of lead in the blood at which employers must remove employees from work with lead. If, despite all control measures, the amount of lead that an employee absorbs reaches the suspension level, the doctor responsible for medical surveillance will usually certify that the employee should be removed from work involving exposure to lead. If employers cannot transfer the employees to other work not involving exposure to lead, they must pay them suspension pay for up to six months under the Employment Rights Act 1996.

The regulations also set out blood-lead levels below the suspension levels, known as action levels. If these lower levels are breached, employers must investigate and remedy the cause. They must also take positive steps to reduce the concentration of lead in the air to a level not exceeding the occupational exposure limits (OEL) in the regulations. The levels specified are as follows:

• the OEL for lead other than lead alkyls is 0.15mg/m³ air; and that for lead alkyls is 0.10mg/m³ air, averaged over an eight-hour period;

• the action levels are 25μg/dl for women of reproductive capacity;

• 40μg/dll for young people and μg/dl for any other employee; and

• suspension levels are 30μg/dl for women of reproductive capacity, 50μg/dll for young people and 60μg/dll for other employees, and urine lead concentrations of 25μg/Pb/g creatinine for women of reproductive capacity; and 110μg Pb/g creatinine for other employees.

Regulation 5 requires employers to make a suitable and sufficient assessment of the risks created by working with lead and to consider whether the exposure of any employee to lead is likely to be significant. Employers must review the risk assessment regularly.

They must also review the risk assessment if the results of any monitoring show it to be necessary, or if the blood-lead concentration of any employee under medical surveillance reaches the action level. Under Regulation 6, employers must prevent exposure to lead by substituting a substance or process that eliminates or reduces the risk to employees.

Regulation 8 imposes duties for the care and decontamination of personal protective equipment (PPE). Employers must keep records of air monitoring for five years under Regulation 9. Regulation 10 defines the circumstances in which an employee must be under medical surveillance. Employers must give employees at risk of lead exposure suitable and sufficient information. Information, instruction and training must be adapted to take account of significant changes in the type of work carried out, or the methods of work used.

Regulation 11 introduces a duty to ensure that the contents of containers and pipes for lead used at work are clearly identifiable. Regulation 12 requires employers to prepare procedures, provide information and establish warning systems to deal with an emergency in the workplace related to the presence of lead.

The regulations prohibit the employment of young people and women of reproductive capacity in the following activities, listed in Schedule 1 to the regulations:

• lead smelting and refining processes, work involving the handling, treatment, sintering, smelting or refining of ores or materials containing not less than 5% lead;

• lead-acid battery manufacturing processes, work involving the manipulation of lead oxides; mixing or pasting in connection with the manufacture or repair of lead-acid batteries; the melting or casting of lead; the trimming, abrading or cutting of pasted plates in connection with the manufacture or repair of lead-acid batteries; and

• cleaning places where any of these processes are carried out.

The main industries affected by the regulations are lead smelting, refining and casting, battery manufacture, shipbuilding, glassworks, potteries, waste recycling and demolition firms.

In April 2012, recycling company Metal and Waste Recycling Ltd was fined £49,500 plus costs of £25,483, for exposing 90 Romanian workers to lead. The company was stripping lead-sheathed copper cabling bought from British Telecom after the switch to fibre optic cable.

Acting on a tip-off from an employee, the HSE investigated the site, finding that nothing had been done to reduce workers’ lead exposure or to provide respiratory equipment. Workers wore their own clothes, apart from gloves, and lead was even being spread to their own homes when they left work. No health checks had been carried out, and checks by the HSE-appointed doctor resulted in 23 workers being found to have significantly high levels of lead in their blood, six of whom were hospitalised with the symptoms of lead poisoning.

Other hazardous substances legislation

Transport of dangerous goods

The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (CDG 2009) came into effect in July 2009. The regulations were amended in 2011 to reflect changes to the EU Transportable Pressure Equipment Directive.

Pesticides and biocides

Use, supply, storage and advertisement of pesticides is regulated by a number of different regulations including the Control of Pesticides Regulations 1986 and the Plant Protection Products Regulations 1995 (PPPR).

The HSE is the regulator for pesticide products. These products split into two categories: those used in agriculture, horticultural and home gardens and those used for public hygiene. The Chemicals Regulation Directorate (www.pesticides.gov.uk), a division of the HSE, is responsible for ensuring the safe use of biocides, industrial chemicals, pesticides and detergents to protect the health of people and the environment, and for administering the REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulations. The use of pesticides is also regulated by COSHH.

The Biocidal Products Regulations 2001 control biocides, which are used to control, for example, cockroaches, rats and wood rot. Examples include disinfectants, preservatives, pest control and anti-fouling products.

Also relevant are the Genetically Modified Organisms (Contained Use) Regulations 2000. These regulations cover research and development, industrial production of some pharmaceuticals and enzymes and the growth in contained greenhouses of genetically modified plants. They do not cover deliberate release into the environment.