Asbestos has long been known to be an extremely useful material but during the second half of the 20th century its use was found to have "a very significant 'downside' in that exposure to its dust can cause three fatal diseases: asbestosis, lung cancer, and mesothelioma of the pleura and peritoneum" (quoted from a History of asbestos related disease, by Dr P. Bartrip, Postgraduate Medical Journal 2004; 80:72-76). The law has developed to give specific rights to workers exposed to asbestos dust.
An employee (or his executors) who suffered as a result of the employer's failure to take precautions will usually be able to bring an action in negligence against the employer. Persons disabled by specified asbestos related diseased (or their dependants if they have died) may be entitled to lump sum payments under the Pneumoconiosis etc. (Workers' Compensation) Act 1979 if the employer has ceased trading and so cannot be sued.
The statutory start point on employer liability is the EC "asbestos" Directive, 1983/477/EC "on the protection of workers from the risks related to exposure to asbestos at work" (as amended by 91/832/EEC and 98/24/EC). In March 2003, the EC issued a new Directive 2003/18/EC to amend and tighten up Directive 1983/477/EC. An important provision (art 8) is that employers must ensure that no worker is exposed to an airborne concentration of asbestos in excess of 0.1 fibres per cm3 as an eight-hour time-weighted average (TWA). The new (generally tighter) rules should have been implemented in all Member States by 15th April 2006 (art 2 of Directive 2003/18/EC) but the UK missed that date. In the event the implementing regulations came into force from 13th November 2006 (the Control of Asbestos Regulations 2006 SI 2006/2739).
It should not be overlooked that, in addition to the employment law related issues discussed in this note, criminal charges can be brought under the Environmental Protection Act 1990 for misuse of asbestos.
In an important ruling in May 2002 the House of Lords held that an employee who had developed the (serious) mesothelioma form of cancer after working for various employers in an industry where exposure to asbestos dust was rife could claim compensation even though he could not demonstrate which employer he was working for when he inhaled the particular fibre(s) which led to the disease ( Fairchild v Glenhaven Funeral Services Ltd and anor HL 2002 ICR 798). It is sufficient, in order to establish liability in mesothelioma cases, to show that the asbestos exposure for which any one defendant is responsible has contributed materially to the risk which later materialised.
In May 2006 the House of Lords ruled that liability should be apportioned between the various employers according to how long the exposure to asbestos lasted ( Barker v Corus (UK) plc and other cases HL 2006 ICR 809). The Barker decision (above) was heavily criticised, not least by the government, although at one stage, wearing its hat as employer, the government was arguing for the decision to which the House of Lords came. The government therefore made new law to make all relevant employers, and thus their insurers, jointly and severally liable (see notes at Acts of Parliament etc/Compensation Act 2006 ).
In 2007 the House of Lords, agreeing with the Court of Appeal, held that pleural plaques is not a compensatable disease (see notes at Rothwell v Chemical & Insulating Co Ltd CA 2006 ). There were cogent reasons for this decision, based on the fact that pleural plaques do not cause physical injury and that the worry that they might lead to disease is not a compensatable injury. A private member's Damages (Asbestos-Related Conditions) Bill was introduced in the House of Commons in January 2009 and will, if enacted, effectively reverse the House of Lords decision. A similar Damages (Asbestos-related Conditions) (Scotland) Act 2009 became law in Scotland in March 2009 (see notes at Bills before Parliament/Damages (Asbestos-related Conditions) Bill ).
The Control of Asbestos at Work Regulations 2002 SI 2002/2675 included a specific new duty on employers to identify, record and deal with materials likely to contain asbestos, in force after an eighteen month lead-in period from 21st May 2004. Although these 2002 regulations were revoked and replaced by the Control of Asbestos Regulations 2006 SI 2006/2739, the 2006 regulations continue that new duty. As with most other Health & Safety regulations, failure to comply is a criminal offence under Health and Safety at Work etc Act 1974 s.33 (see notes at Health and Safety at work/criminal offences ).
The Health and Safety Executive maintains a useful dedicated asbestos area on its website.
Available from the HSE website are also: the Code of Practice re the Control of Asbestos Regulations 2006, November 2006, an HSE Guide to management of asbestos in non-domestic premises, 2006 and a 2010 publication HSE - "Asbestos: The survey guide", January 2010..