Asbestos is a group of fibres that have been used to create many manufactured goods, mainly building materials. Since the initial use of asbestos awareness has grown as to the negative impact this can have when disturbed or damaged and fibres are released into the air.
Asbestos kills around 5000 workers each year and can be present in buildings built or refurbished before 2000. It is still a problem in the modern-day as workers may be tasked with working on buildings built or refurbished before 2000 and the health issues from inhalation of asbestos can often take a long time to present themselves. As such workers who worked with asbestos in the past may can still only just beginning to show symptoms in the present. Asbestos is only dangerous when it is made airborne and breathed in, asbestos fibres in the air cannot be smelled or seen.
Following diseases are often caused by asbestos:
- Mesothelioma
- Asbestos-related lung cancer
- Asbestosis
- Pleural thickening
What an employer should do:
Every employer should ensure that any employee who in the course of their work may disturb asbestos or those supervising get the required training and information to protect themselves and others. They should be able to recognise asbestos-containing materials if they come across them. They should also ensure that the employee is provided with the correct protective equipment when dealing with asbestos. Failure to do this could mean they are in breach of their duty of care to their employees mentioned in the introduction above
Employer’s duty of care concerning asbestos
All employers are subject to the duty to take reasonable care to prevent exposure of their employees, and members of their families from inhaling the asbestos that might cause mesothelioma. What will be considered reasonable care will depend on the circumstances of the case but normally an employer will be expected to reduce the employee’s exposure to asbestos as much as possible in light of the resources and operation of the employer’s business.
Secondary exposure
Asbestos can also travel from person to person so that family members of a worker who has dealt with asbestos may be at risk. People who are in contact with the worker or their clothes whilst the worker is still carrying asbestos dust may suffer negative effects from it. This is known as ‘secondary exposure’. It is possible that where a worker’s family has suffered harm from asbestos exposure which has been bought home from work by the worker the worker’s employer will be liable. This can be seen in the case of Corey v Vauxhall Motors Ltd [2019] where the court confirmed that concerning asbestos the duty to an employer has to their employee mentioned above also extends to the employee’s family members.
The Control of Asbestos Regulations 2012
These regulations impose a duty on employers which is intended to protect employees from the risks of asbestos exposure. The regulation places a legal duty on the employer who will be judged to commit a criminal offence if they fail to meet any of those duties. Although there is a 6-month time limit to bring a case from the date where the duty was breached. A brief outline of the duties is set out below.
Assessment of Premises
Before an employer can start building work or any other work which exposes or is liable to expose employees to asbestos they must carry out a suitable assessment of the premises to determine whether asbestos is or is liable to be in the premises and in what condition that asbestos is.
If the employer is unsure whether there is asbestos, they should assume asbestos is present.
Assessment of work
An employer should not start work which could lead to an employee encountering asbestos unless they have made a ‘suitable and sufficient assessment of the risk created by the exposure to the health of the employees and recorded the findings of the risk assessment. The risk assessment should be reviewed regularly.
Plans of work.
An employer must not start work with asbestos unless a suitable plan is in place.
Licensing work with asbestos
Employers must not carry out licensable work with asbestos unless they hold a licence to do so. Licensable work with asbestos is work where:
The exposure to asbestos of employee is not sporadic and of low intensity; or
- Work which the risk assessment cannot demonstrate the control limit will not be exceeded.; or
- Work on asbestos coating; or
- Work on asbestos insulating board or asbestos insulation which the risk assessment:
-
- Shows the work is not sporadic and of low intensity, or
- Does not clearly show that the control limit will not be exceeded, or
- how’s the work is not of a short duration.
The control limit mentioned above is a concentration of asbestos in the atmosphere of 0.1 fibres per cubic centimetre of air averaged over a continuous period of 4 hours. No exposure will be sporadic and of low intensity where it exceeds the control limit. An employer can obtain a license to work with licensable asbestos by an application to the health and safety executive.
Notification of work with asbestos
Before starting work with any licensable asbestos, the employer is required to give written notice to the appropriate office of the ‘enforcing authority. Regulation 2 of the Control of Asbestos Regulations 2012 states this will be the Health and Safety Executive, local authority or Office of Rail Regulation.
Duty to inform, instruct and train employees.
The employer must provide information and training to all employees and their supervisors who could be exposed to asbestos. The training and information should allow them to protect themselves and others from asbestos exposure. It should also be given at regular intervals and take account of any change in the work being done.
Duty to prevent or reduce asbestos exposure.
They should prevent their employees from being exposed to asbestos to the degree it is reasonably practicable. Where complete prevention is not reasonably practicable, they should reduce the exposure to the lowest possible level.
Using control measures
When providing control measures an employer must ensure that it is used or applied properly. A control measure is defined by Regulation 2 as “a measure taken to prevent or reduce exposure to asbestos (including the provision of systems of work and supervision, the cleaning of workplaces, premises, plant and equipment, the provision and use of engineering controls and personal protective equipment)”.
Maintenance of control measures
The employer must ensure the control measures are kept in working order, in good repair, and clean condition. If the control measure is a system, it should be revised at regular intervals and updated if necessary. An employer must ensure exhaust ventilation equipment and respiratory protective equipment is tested at regular intervals by a competent person.
Provision and cleaning of protective clothing
Employers must provide adequate protective clothing for those employees who could be in contact with asbestos. They must also ensure that this clothing is disposed of or cleaned at regular intervals. The cleaning should take place at the same place as where the asbestos exposure occurred if those premises are equipped to carry out the cleaning.
Duty to make arrangements to deal with accidents, incidents and emergencies.
Where there is an accidental release of asbestos an employer should take steps to mitigate the effects of the release and return the situation to normal. They should also inform any person affected. Where the employer is carrying out licensable work an employer should prepare procedures that can be put in place if an accident occurs and such procedures are displayed at the workplace.
Duty to prevent or reduce the spread of asbestos.
Employers should prevent the spread of asbestos from any place where work is carried out under their control.
Duty to clean premises and plant
The premises and plant should be kept in a clean state and once work has been completed the premises should be thoroughly cleaned.
Designated areas
Employers are required to designate any areas in which employees are potentially exposed to asbestos as ‘Asbestos areas’. Any area where the control limit is exceeded should be designated as ‘Respirator zones’.
Employers should not allow employees to enter these areas unless they are required to carry out work. Employers should provide notice to the employees of these areas.
Duty to monitor air quality
Employers should measure asbestos fibres in the air at regular intervals, records must be kept of this monitoring. Employees must be allowed to access their monitoring records.
Duty to main health records and carry out medical surveillance.
Where an employer is carrying out licensable work they must maintain a health record for every employee exposed to asbestos. They are required to keep this record for 40 years. They must also ensure each employee is kept under medical surveillance by a doctor appointed by the Health and Safety Executive. The surveillance should include an assessment within two years of the first exposure and at least once every two years where the exposure is ongoing.
Employees must attend the assessments and provide the doctors with all relevant information.
Duty to provide washing and changing facilities
Where an employee could be exposed to asbestos an employer must provide adequate washing and changing facilities and areas to store protective clothing and equipment.
Duty relating to storage, distribution and labelling of raw asbestos
Raw asbestos and waste that contains asbestos must be put into a sealed receptacle and labelled before it is either stored, received into, or dispatched from any place of work.
Additional Information
Any further information or more detail relating to these duties and the consequence of failure to meet them can be found here: https://www.legislation.gov.uk/uksi/2012/632/contents/made
Diffuse Mesothelioma Payment Scheme (DPMS).
This scheme provides payment for those suffering from Diffuse Mesothelioma where their employers or their employers’ liability insurance company cannot be traced. Normally this is because it can be a while after exposure when the effects can set in and the employee may not be able to claim against the employer or their employer’s liability insurance company because the company does not exist, or a relevant person cannot be traced.
Eligibility
Those who suffer from diffuse mesothelioma and their dependents will be eligible to claim under the (DPMS) if they:
- Have been diagnosed with diffuse mesothelioma on or after 25th July 2012 (claims through DMPS must come within 3 years of diagnosis),
- It was caused by exposure to asbestos at work when working in the UK,
- The employer who exposed you to asbestos or their insurers cannot be traced,
- You have not made a civil claim against any employer or insurer concerning the condition,
- You have not received damages or a specified payment for mesothelioma.
Dependents of a sufferer who has died but who meet the above criteria can also claim under the DPMS.
How much can be claimed:
The amount which can be claimed is dependent on the age of the sufferer when they are first diagnosed or when it is their dependent it is the date of the death of the sufferer. For those diagnosed from 10th February 2015 payments are set out in this table: https://www.mesoscheme.org.uk/payment-tariff/ (It should be noted that these payments include a £7,000 contribution to legal costs)
Do you need a solicitor to make a claim?
No, you can complete the application yourself details of how to do that are set out below.
How to make an application:
An application should be made to the scheme administrator, this is currently TopMark Claims Management Ltd. Applications can be made either through their site, by post or e-mail. To make an application through their site or to download the forms to make an application by post or e-mail follow the link: https://www.mesoscheme.org.uk/
The application must be received by the administrator within three years of diagnosis.
Information and documents for your application:
- National Insurance Number,
- Age when diagnosed,
- Evidence of diagnosis and date it was made,
- Full employment history and evidence in support of it,
- Evidence of any/all attempts to trace your employer/ their insurer (Employers’ Liability Tracing Office holds historic insurance policy records.),
- Details of any previous claims made,
- A witness statement (See below)
The scheme administrator may contact you after you have sent in your application to request any additional information or documents. It is important you respond to the request in the notice period given, which will be at least 7 days, or the administrator will determine the application on the information it has in front of it.
Witness Statement:
A witness statement should include your experience working for the employer and any contact you had with asbestos during that work and describing any protection, training, or instructions you received relating to it.
For a guide on how to write a witness statement: https://www.gov.uk/government/publications/filing-evidence-about-an-application-or-in-tribunal-proceedings/how-to-complete-a-witness-statement
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