Asbestos in the workplace

Background

‘Asbestos’ describes any one of several naturally occurring fibrous minerals that have crystallised to form fibres.

While the importation, supply and use of asbestos has been banned in the UK since 1999, its widespread use in buildings built before this date means that it remains present in buildings which are still in use.

Asbestos is only dangerous when disturbed; if it is safely managed and contained, it does not present a health hazard.

If a person inhales asbestos dust, they could go on to develop asbestosis – long term inflammation and scarring of the lungs. Asbestosis increases the likelihood of developing other serious conditions such as pleural disease (thickening of the lining covering the lungs), mesothelioma (cancer that affects the lining of the lungs, tummy, heart or testicles) and lung cancer.

Asbestos related injuries and mortality

Diagnosis statistics published by NHS Digital advise that, in 2021/22 in England, there were:

• 13,974 hospital episodes where one of the recorded diagnoses was Pneumoconiosis due to asbestos and other mineral fibres.
• 34,433 hospital episodes where one of the recorded diagnoses was Pleural plaque with presence of asbestos.
• 16,777 hospital episodes where one of the recorded diagnoses was Mesothelioma.

The Health and Safety Executive publishes statistics on asbestosis mortality for men in Great Britain by occupation. Between 2011 and 2020, 82,287 men from construction and building trades died – the highest number of all the occupation groups.

Health and safety requirements

A range of health and safety legislation may apply to work-related activity (depending on the specific nature) and the management of asbestos in non-domestic premises.

The Control of Asbestos Regulations 2012 (CAR 2012) places the person responsible for the maintenance of non-domestic premises under a ‘duty to manage’. This person – the duty holder - must protect people using or working in that premises from the risks to health presented by asbestos exposure. The regulations require employers to take several steps to minimise the risk from asbestos, including:

• Carry out a risk assessment to determine if asbestos is present in the premises, prior to demolition, maintenance or other work which could expose employees to asbestos.
• Provide adequate training to employees who may be exposed to asbestos.
• As far as is reasonably practicable, prevent employees from being exposed to asbestos. Where this is not reasonably practicable, employers must facilitate the work to be carried out in a way that minimises risk and provide appropriate respiratory personal protective equipment.

Asbestos work is categorised according to the extent of risk it presents. Conditions apply to higher risk asbestos work, such as restricting it to licensed contractors and requiring prior notification to an enforcing authority.

Status of the Control of Asbestos Regulations 2012 as retained EU law beyond 2023

CAR 2012 form part of retained EU law – a form of UK domestic law intended to preserve the substantive law of the UK after EU law was “cut-off” as a source, following the UK’s departure from the EU.

The Retained EU Law (Revocation and Reform) Bill 2022-23 is currently undergoing its Parliamentary stages. The Bill seeks to overhaul the constitutional architecture of retained EU law, making it easier to revoke, modify or replace through secondary legislation. Notably, the Bill would, as currently drafted, place a “sunset” on retained EU law, causing most of it to expire at the end of 2023.

CAR 2012 is among the retained EU law which would, by default, expire at the end of 2023, along with some other health and safety law.

The Bill is not yet law, and the Government has not yet set out its intentions as regard to the expiry or retention of the CAR 2012. This ought to become clearer as and when the Bill is enacted. During the Bill’s Committee Stage, an amendment seeking to exclude CAR 2012 from the sunset clause was not moved.

Asbestos compensation payments

For people suffering from asbestos-related conditions or their families, there are four Government schemes under which they might receive payments:

• Industrial Injuries Disablement Benefit (IIDB), a non-means-tested, tax-free, non-contributory benefit payable to people who have become disabled as a result of an accident at work, or because of one of over 70 prescribed diseases known to be a risk from certain jobs.
• The scheme set up under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 (PDF) which provides lump-sum payments for people suffering from lung diseases caused by exposure to certain dusts (including asbestos), where they are unable to claim damages because the employer has gone out of business.
• The Mesothelioma 2008 Act Scheme, which provides up-front lump-sum payments to anyone diagnosed with mesothelioma, in recognition of the difficulties people face obtaining compensation from other sources, and the fact that people usually die within months of diagnosis.
• The Diffuse Mesothelioma Payment Scheme (DMPS), which since 2014 has made payments to people with diffuse mesothelioma who were exposed to asbestos either negligently or in breach of statutory duty by an employer, and who are unable to bring a claim for damages against the employer or that employer’s liability insurer.

A worker may be able to make a civil claim where they have been exposed at work to asbestos and this has resulted in personal injury.

The Compensation Act 2006 provided for scenarios where multiple employers negligently exposed a single worker to asbestos, creating difficulty with apportioning liability for compensation. The Act enabled victims of asbestos-related illness to claim in full against any person who negligently exposed them to asbestos, shifting the burden onto the negligent person to seek contribution from others.