Asbestos: the never-ending story
The Work and Pensions Select Committee (the Committee) has published its report into the Health and Safety Executive’s (HSE) approach to asbestos management. In doing so, a number of observations and recommendations have been made. Looking ahead to the coming year, we expect the HSE to publish yet further reviews of existing guidance and legislation.
The Committee’s recommendations
Earlier this year, the Committee heard from a number of experts, the HSE and interested parties such as asbestos victims charities. The headline grabbing recommendation was for the complete removal of asbestos from all buildings within 40 years, starting with schools. This is no simple task given it is estimated that between 210,000 and 410,000 non-domestic buildings are thought to contain asbestos.
The Committee also recommended the following:
The HSE is expected to report back to the Committee and undertake their statutory review of the Control of Asbestos at Work Regulations 2012 later in the year. These reports will be key in determining how the HSE will manage asbestos and develop regulations in the coming years.
The Committee found that the life-time risks for developing mesothelioma are reducing. Such findings are unsurprising given the importation, supply and use of asbestos was completely banned in the UK in 1999, but its legacy lives on. Asbestos remains the single greatest cause of work-related deaths in the UK.
This risk analysis also supports the existing work by the HSE and Faculty of Actuaries that mesothelioma numbers should continue to decrease, which will be welcomed by insurers and reinsurers as claim costs begin to fall over the next two decades from the peak of 2020.
Whilst the overwhelming numbers of mesothelioma victims are males, the Committee reported increasing risks faced by females who work as teachers or in administrative trades. This trend was also noted by the HSE earlier in 2022.
Whilst the risk for teachers is currently increasing, claims relate mainly to exposures from those born around 1950 and who worked in the 1970s when asbestos was still used in the construction of schools. It is likely that the risks for teachers and administrative occupations will fall again for those born after 1950 and who worked predominantly in the 1980s when tighter regulation existed.
Caution was expressed by the Committee around introducing an urgent programme of asbestos removal beyond the capacity of industry to safely remove it, and the potential to cause an upswing in future risks. Therefore, it is hoped that the HSE will work with industry to ensure that an achievable date for all removal is set.
Looking to the future
The HSE believes the annual cost of mesothelioma alone is £3.4 billion and it will remain one of the largest, if not the largest, cost to injury legacy insurers and (re)insurers for the next couple of decades.
Given the recommendations made by the Committee, it is likely we will see further changes to the management of asbestos across the UK. Further, the Committee has set a clear direction of travel with the statutory review of the Control of Asbestos at Work Regulations 2012, and it seems likely standards will be raised and/or an updated set of the 2012 Regulations created in the coming years. This will be in addition to the newly published 'Asbestos: The Analysts’ Guide - HSG 248' which comprehensively updated the guidance for testing asbestos in buildings.
However, there is a balance to be struck between protecting the public at large whilst ensuring that change in regulation is realistic and achievable.
The HSE is primarily funded by central government, although since October 2012 its income has been supplemented by the Fees For Intervention regime (FFI). With cuts to the HSE’s budget by approximately 50% between 2010/11 and 2019/20, it remains to be seen whether the renewed calls for increased enforcement of the present regime (or any enhanced regime) will be met by public funding and/or through increased inspections and recovery of their investigative costs via FFI. Nonetheless, with this issue now firmly on the HSE’s radar, the prospect of removing all asbestos from buildings and the possibility of tighter regulations, it is reasonable to expect an increase in HSE investigations and enforcement action generally in the coming years, including prosecutions.
From an occupational disease perspective, given the latency period between exposure and the development of mesothelioma, today’s regulations are likely to be the focus of civil claims in the years to come.
Likewise, from a criminal enforcement perspective, there is no limitation on when the HSE must commence or conclude an investigation under the Control of Asbestos at Work Regulations 2012 and/or the Health and Safety at Work etc Act 1974. In many cases, investigations can go on for years before any enforcement action is taken.
It is therefore crucial that duty holders retain all records relating to asbestos (including precautionary steps taken such as outsourcing of works and the extent of training and PPE provided) as without evidence of compliance, future claims will be almost impossible to defend. It will also make it particularly difficult to defend any prosecution brought by the HSE. Consideration should also be given to retaining records for any employee who may have worked with or been exposed to respirable asbestos.
Looking to the future, the proposed creation of a digital asbestos register will be beneficial to insurers, compensators and mesothelioma victims trying to identify their past exposure, particularly in relation to non-traditional occupations involving environmental exposure.
As has been the case for the last 25 years, the asbestos story continues to develop despite two decades since the legal ban on asbestos. The next chapter is likely to involve ever tighter regulation and a greater emphasis on removal.