Health and safety update: asbestos exposure, RIDDOR, occupational health

Asbestos exposure

In February 2011, the European Commission (EC) found that the UK was failing to fully comply with the asbestos directive (2009/148/EC) designed to protect workers involved in sporadic and low-intensity exposure to asbestos. The government was ordered by the EC to rectify the situation to bring UK legislation in line with the European directive.

The Health and Safety Executive launched a consultation on 5 September 2011 entitled Proposals on Revised Control of Asbestos Regulations, which closed on 4 November 2011 to consider the new measures that needed to be implemented to bring the UK in line with EC legislation.

Following the consultation, the government introduced the Control of Asbestos Regulations 2012 (CAR 2012) which came into force on 6 April 2012.

In practice, the changes brought in by the CAR 2012 are fairly limited. Employers in the UK were previously exempted by the Control of Asbestos Regulations 2006 (CAR 2006) from applying the asbestos directive for activities that involved 'sporadic and low-intensity exposure'. Under the CAR 2006 there was no requirement to notify asbestos works to a responsible national authority or ensure a health assessment was made of new workers exposed to asbestos, and no need to keep a register of the workers who were, or may be, exposed to asbestos at work. This meant that workers were vulnerable to unmonitored exposure to asbestos.

Now, the CAR 2012 requires that a brief written record should be kept of non-licensed work, which has to be notified. The duty to keep a record is not extensive; for example, a copy of the notification with a list of workers on the job, together with the level of likely exposure of workers to asbestos, should be recorded. According to the HSE, air monitoring on every job is not required if an estimate of the degree of exposure can be made based on experience of similar past tasks or published guidance.

By April 2015, under the CAR 2012, all workers and self-employed persons undertaking notifiable non-licensed work with asbestos must be under health surveillance by a doctor. Workers who are already under health surveillance for licensed work do not need to have another medical examination for non-licensed work, but medical assessments for notifiable non-licensed work will not be acceptable for those undertaking licensed work.

The changes are welcome to ensure that there is appropriate monitoring of work with asbestos, which is well recognised as a dangerous substance. However, they may not go far enough. Limitations of the regulations include basing air monitoring levels on past experience, since levels of asbestos can vary even within one room. Although the new regulations may have improved the position, it is concerning that potentially fatal low-level asbestos exposure is, to an extent, deemed acceptable. As Lord Phillips noted in the latest mesothelioma test case of Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1211, 'there is no known lower threshold of the exposure that is capable of causing mesothelioma'. Therefore there is no 'safe' level of exposure to asbestos.

Employer injury reporting

The reporting requirement in RIDDOR for over-three-day injuries also changed on 6 April 2012. There is now the requirement for injuries resulting in over seven days' incapacitation (excluding the day accident occurred) to be reported to the HSE, rather than the previous requirement of three days or more of incapacitation being reported. Employers must continue to keep a record of all over-three-day injuries. However, an accident book record will be enough. The changes are likely to allow dangerous practices by some employers going unnoticed. The changes to the reporting system came in fairly rapidly given the consultation on reform only concluded in October 2011.

Gaining compensation

It is interesting that the government is taking a more relaxed approach to implementing the Third Parties (Rights Against Insurers) Act. The Act was given Royal Assent two years ago to update previous legislation dating from the 1930s. The government has indicated that the ?2010 Act is unlikely to be implemented ?until 2013.

The Act, once implemented, will assist people in gaining compensation in a timely manner particularly when suffering from life-limiting industrial diseases, including those suffering from asbestos-related diseases such as mesothelioma. Claimants will have the right to proceed directly against an insurer without having to restore a defunct former (employer) company to the Register of Companies. Under the current system the company must be restored to the register before a claim can proceed.

The restoration process is required despite the fact the relevant company's insurer will deal with the claim and the company itself has no real involvement in the legal process. The process itself is lengthy, complex and costly. Current legislation requiring restoration results in unnecessary delay and expense. The restoration of the company is therefore an archaic and meaningless exercise.

Once it is brought into force, the new Act will make allow a claimant to bring a claim expeditiously against a relevant party with less expense being incurred. The delay by the government in the formal implementation of the Act is curious given their continuing crusade against 'compensation culture'. For all intents and purposes, the Act is a sensible piece of legislation that it will save time and costs. Some say that the delayed implementation of the Act is an example of the government favouring the interests of insurers over the interest of victims.

Fee for intervention scheme

In January's health and safety update, it was reported that the government intended to introduce HSE's 'fee for intervention' scheme (156/4, 31 January). The scheme was recommended by the HSE in response to a formal consultation that took place last year. However, the implementation of the scheme is now delayed.

The scheme will allow the HSE to recover its investigation costs where an employer is not prosecuted, but is nonetheless found to have breached health and safety laws. The government's aim was to put the scheme in place by April 2012. However, the HSE has recently reported that discussions are still taking place on the technical details of the scheme which will now not be introduced until at least October 2012. There have already been some amendments to the scheme, with the HSE hourly rates for investigations costs being reduced by ?seven per cent to £124 per hour from £133 per hour.

Many consider that the fees will be in incentive for businesses to comply with the regulations and that it is right that a party at fault should pay a charge for their breach of the regulations. However, since the consultation concluded, concerns have been raised by businesses about the scheme. They consider that it is likely to be a way for the HSE to bring in revenue following cuts imposed by the government to the HSE budget. There are also concerns that HSE inspectors may be set targets which will only increase the perception that the scheme is a way for the HSE to make up any financial deficit in its budget. Despite the concerns raised about the scheme, a trial of the system is still ongoing pending its formal implementation.

Proposals for legislative reform

The government continues to follow up on the proposals and recommendations made by Lord Young in his October 2010 report, Common Sense, Common Safety, and the report Reclaiming health and safety for all: An independent review of health and safety regulation, produced by Professor Loftstëdt in November 2011. Since the reports were published, the prime minister has been clear that it is his intention to 'wage war against the excessive health and safety culture'.

The chancellor, George Osborne, took the opportunity when making his 2012 budget speech to confirm that the government will 'unashamedly back business' and continue with their intention to 'scrap or improve 84 per cent of health and safety legislation'.

The 84 per cent figure accounts for feedback received from businesses and other interested parties to a government 'Red Tape Challenge' which reviewed health and safety legislation. The Treasury reported that, following the Red Tape Challenge, 167 of 199 measures considered would be 'scrapped'.

The Institute of Occupational Safety and Health (IOSH) has requested clarity in the government's plans for deregulation so that the public are made aware of the full effect of any changes.

Richard Jones, IOSH head of policy and public affairs, said in response to the chancellor's plans: 'It's unhelpful to present 'improvements' and 'scrapping' as interchangeable, or to imply either are reducing duties or deregulating. ?'The government needs to say what proportion is improvement and what proportion is just removal of redundant regulations. There simply isn't scope or need for radical change.'

The IOSH has commissioned specialists from the University of Nottingham to consider whether reducing health and safety regulation will help businesses, without putting employees at risk.

To date, the HSE has earmarked seven pieces of legislation for revocation on the basis that they have become redundant. However, if certain legislation is revoked it appears that their loss will not have a significant impact since the legislation cited includes provisions such as the Anthrax Prevention Order 1971 (Revocation) Regulations 2005, Pottery (Health and Welfare) Safety Regulations 1950 and the Employment Medical Advisory Services (Factories Act Orders etc Amendment) ?Act 1973, which are not well known and which do not have everyday application for the vast majority of businesses. Their removal is therefore unlikely to change the current landscape.

It appears that although the government has taken the view that there needs to be ?a complete overhaul of the health and safety landscape, it is not only the IOSH which is cautious about the government's approach.

Professor Ragnor Löfstedt, speaking at April's IOSH 2012 conference, told delegates that the use of the word 'burden' to describe health and safety's impact on business was not his. He emphasised that his mandate was 'clearly a deregulatory one'. At the conference he clarified for the delegation that his conclusions were that, while there is no need for a major overhaul of the system, health and safety activity must be risk-based.

He stated that David Cameron's recent branding of health and safety as 'a monster' was 'not helpful'. Professor Löfstedt made a total of 26 recommendations in his report, all of which were accepted by the government. However, at the IOSH conference he indicated that the changes he proposed were 'nothing radical' but actually aimed at the likes of self-employed persons engaged in low-risk activities such as writers, and not at sectors like agriculture and construction.

Professor Löfstedt emphasised the need to look at streamlining legislation and criticised the media, calling on them to be responsible and report on the benefits of a positive approach to health and safety, emphasising that education is the key to progression on the issue as a whole.

There has been much rhetoric utilised by the government in respect of health and safety, with them using it as a tool to demonstrate that reform will have hard-hitting and far-reaching consequences for businesses and insurers. However, it is clear that many do not consider that the government's current approach of waging war against health and safety is the right one. Many believe that education is the key to reforming this area. Although the government seems fixated with advocating a total health and safety legislative overhaul, in reality even their own consultant has made clear that the need is for streamlining rather than steamrollering over the current legislation.