Asbestos

The Control of Asbestos Regulations 2012 (the 2012 Regulations) became law on 6 April 2012, replacing the Control of Asbestos Regulations 2006. Although the 2012 Regulations were very similar to the 2006 Regulations, they contained some minor changes relating to certain exemptions for so-called “low risk” work. The European Commission decided that the UK had failed to fully implement the Asbestos Worker Protection Directive through the 2006 Regulations, concluding that certain exemptions for “sporadic and low intensity work” were wider than the Directive had intended. The 2012 Regulations narrowed 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 (from April 2015); and

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

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 below: 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 that exposure from work activities involving asbestos must be reduced 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;

• prepare a plan and act on it; 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 reoccupation following licensed asbestos work must be accredited by the United Kingdom Accreditation Service (UKAS) (Regulation 20(4)).

Asbestos ACoP

A revised asbestos ACoP was published in December 2013. This consolidated two existing ACoPS into one, as recommended by Löfstedt (see Chapter 1), and reflects the changes introduced by the Control of Asbestos Regulations 2012 outlined on page 107.

The revised ACoP, Managing and working with asbestos, covers the information that was previously found in ACoP L127 (The management of asbestos in non-domestic premises) and ACoP L143 (Work with materials containing asbestos), both of which have been withdrawn.

The revised ACoP is available to download from the HSE website at: www.hse.gov.uk/pubns/priced/l143.pdf

In October 2014, the HSE launched a new safety campaign to warn tradespeople including carpenters, painters and decorators and construction workers about the dangers of coming into contact with asbestos. It says that an average of 20 tradespeople die every week from asbestos-related diseases and that a new HSE-commissioned survey found that tradespeople could come into contact with deadly asbestos on average more than 100 times a year.

A key feature of the campaign is the creation of a new web app for phones, tablets and laptops that helps tradespeople easily identify where they could come into contact with asbestos as they go about their day-to-day work and gives them tailored help on how to deal with the risks. In addition, Trade Point stores are distributing free asbestos safety kits. The web app is available to download at: www.beware-asbestos.info/news

Compensation Act 2006

The Compensation Act 2006 was enacted as a result of union campaigning. It states that where workers have been exposed to asbestos by more than one employer and have 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.

Diffuse Mesothelioma Payment Scheme

In February 2015, the government revised the mesothelioma compensation scheme rules and sufferers of the asbestos-related cancer will now receive extra payouts.

Compensation will rise to match 100% of average civil claims, up from the previous 80% criticised by unions and victims groups. The scheme paid out over £19 million in its first 10 months, and is aimed at mesothelioma sufferers unable to claim compensation as their employer or employer’s liability insurer is untraceable — due to the length of time between asbestos exposure and cancer diagnosis, many employers and their insurers no longer exist and so the liable successor organisations are often untraceable.

However, mesothelioma sufferers diagnosed before 25 July 2012, who would otherwise have been eligible for a payment, are still excluded. The scheme has a number of inadequacies but, for those people who have received payments to date, it has given them some financial security. Asbestos campaigner Doug Jewell contested the claim that claimants stand to get an additional £54,000. He said that would only apply to those suffering the deadly cancer who are aged under 40 — and he said there have been none to date. In reality, claimants would normally receive an additional sum of £21,000. Details of the government compensation scheme and how to apply are available at: www.mesoscheme.org.uk

Lawyers representing the family of a man who developed mesothelioma say a landmark judgment handed down in the Supreme Court in October 2014 will protect the rights of future sufferers to receive a fair settlement to provide for their families after their death.

Five judges examined the case of delivery driver Percy McDonald who was exposed to asbestos dust when he regularly visited Battersea Power Station to pick up waste products in the 1950s.

The defendant previously argued that Mr McDonald and his family could not receive compensation because he was not employed by the occupier of the site and because their primary work was not directly involved in the asbestos industry.

However, lawyers who represented Mr McDonald’s family after he died just a week before the Supreme Court hearing, say the ruling in the family’s favour clarifies the law and gives greater protection to current and future victims of industrial diseases and accidents. They say that the majority Judgment provides guidance on several key points of law:

• it establishes that under the Factories Act 1937 it is the occupier of the premises which is responsible for the welfare of the people on site, not just those that it directly employs; and

• it states that the Asbestos Industry Regulations apply to all factories using asbestos – not just those involved in the asbestos industry.

Pleural plaques

Unions are continuing to demand 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). The Act enables victims suffering from pleural plaques to bring personal injury claims for compensation.

The Northern Ireland Assembly Damages (Asbestos-related Conditions) Act NI 2011 allows people in Northern Ireland suffering from pleural plaques to seek compensation. This leaves England and Wales isolated with continuing government failure to legislate for compensation for sufferers of pleural plaques.

Recovery of NHS costs for treating asbestos diseases

SNP MSP Stuart McMillan has lodged a Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill in the Scottish Parliament. Safety campaigners say that NHS Scotland spends more than £20 million a year diagnosing and treating people who have become ill due to exposure to asbestos. The Bill would allow NHS Scotland to reclaim the costs of treating people with diseases caused by exposure to asbestos at work from negligent employers.

At present in Scotland, the NHS can reclaim the costs of treating people injured in workplace accidents, where an individual has successfully claimed against their employer. Recovery of NHS costs of treatment for those injured in accidents caused by the negligence of others has been a recognised concept since the Road Traffic (NHS Charges) Act 1999. The scheme initially applied only to care needs arising from road traffic accidents but was extended in 2003 with the Health and Social Care (Community Health and Standards) Act 2003 to include costs arising out of all types and causes of injury. Section 150 of that Act, however, restricts recovery to costs-related treatment of an injury and not a disease. Consultation on the proposed bill ended on 30 March 2015.

More information can be found on the Scottish parliament website at: www.scottish.parliament.uk/parliamentarybusiness/Bills/85164.aspx.

Similar legislation proposed by the Welsh Assembly in November 2013 was ruled by the Supreme Court to be beyond the legislative competence of the Welsh Assembly and in breach of the compensator’s human rights. The Scottish Bill may face similar obstacles.

Asbestos in schools

Education unions have continued to campaign for action on asbestos in schools. According to HSE figures, 128 school teachers died from the asbestos-related lung cancer mesothelioma between 2002 and 2010, and the campaign group, Asbestos in Schools, says that this figure underestimates the true scale of mesothelioma deaths among teachers as it does not include those aged 75 years old and over.

In March 2015 the Department for Education (DfE) published the long-awaited review of its policy on the management of asbestos in schools. The document sets out the review’s key findings and the steps the DfE will take “to address any barriers to the safe and effective management of asbestos in our schools”.

These include:

• developing better and more targeted guidance on asbestos management in schools;

• enhancing the scrutiny on duty holders for managing asbestos in their schools;

• looking at ways to improve its evidence base, including thorough air-sampling in schools;

• continuing to fund the removal of asbestos where appropriate, directly and indirectly, through its funding programmes; and

• encouraging more academy schools to join the “Risk Protection Arrangement”.

It also published refreshed guidance on managing asbestos in schools.

The new guidance can be found on the DfE website at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/417033/asbestos_managament_guidance.pdf

The teachers’ union NUT says that the findings of the review “were a step in the right direction with a new focus on training for staff and accountability of duty holders”. But it says: “What is lacking, however, is a long term strategy for the gradual eradication of asbestos from schools”.

Also in March 2015, the union published the findings of a survey of asbestos in schools as well as a new “EduFacts” on asbestos which can be found on its website at: www.teachers.org.uk/edufacts/asbestos. In the survey, 44% of respondents had not even been told whether their school is one of the 86% which do contain asbestos.

Removal of asbestos from public buildings by 2028

In March 2013, the European Parliament backed a resolution calling for the removal of asbestos from all public buildings and buildings requiring public access by 2028. It also wants action on a screening and registration programme for public buildings contaminated by asbestos, a road map for asbestos-free workplaces and an asbestos-free environment. The resolution also demands more action on asbestos waste, and for people to be better informed about the risk of asbestos contamination in their homes.