Delays in tracing former employers and insurers, and in trying to obtain the employment records of mesothelioma claimants can all add to the distress of a victim and their close family. In many cases, there may only be a few months left to an elderly victim in which, it is hoped, a mesothelioma claim can be settled.
The task of an asbestosis lawyer to draw together all the relevant historical evidence to present at court can be hampered if particular documents cannot be quickly obtained. It now looks likely that a further obstacle is to be placed in the way of obtaining vital records, which can only bring more unacceptable hardship to claimants and their loved ones.
Companies House – where an accessible register of every UK company’s history and details of its directors, secretaries and accountants is kept – is proposing to destroy the records of all defunct companies after 6 years. It is estimated that more than 2.5 million public records could be earmarked for deletion.
Undermines efforts to tackle “corporate irresponsibility”
The disastrous news comes just weeks after it was reported that a 83 year old mesothelioma victim passed away shortly after HM Revenue & Customs (HMRC) said it would take around 18 months to retrieve the claimant’s work records because the data is stored on obsolete ‘microfiche’ technology dating back to the 1960s.
A significant number of older company records at Companies House are also held on microfiche – tiny “micro” photographs of documents on sheet film – despite digitally storing more recent records. Concern has been raised by deputy Labour leader, Tom Watson MP, saying it undermines efforts to tackle “corporate irresponsibility” of individuals who seek to hide their past “wrongdoing” from scrutiny.
In mesothelioma compensation cases, it is often revealed that a former employer defendant failed to supply personal protection equipment to employees who worked with or in close proximity to asbestos materials. In 1969, the introduction of the Asbestos Regulations extended the statutory duty of employers to ensure all staff were protected from the dangers of working with asbestos, i.e. every process using either asbestos or any product that contained asbestos.
However, as is so often recounted in court by victims, many employers also failed in their ‘duty of care’ to provide any form of health and safety information about the considerable long term risks of exposure.
Names and addresses of employers and their insurers would be lost
A further problem is the exceptionally long period of between 10 and 50 years or more that passes in which the potential for mesothelioma cancer to develop can lay dormant. Almost always, the first asbestosis symptoms appear when the cancer has, undetected, reached a late stage and the victim may only have months or even weeks to live following a confirmed diagnosis.
The wholesale removal of company records after 6 years would simply mean that in a mesothelioma claim involving a company which went bust before that time, vital names and addresses of employers and their insurers would be lost, causing further delays to being traced.
It seems the issue of a time limit to the retaining of records began in June 2015 when the information was first made available for free to the general public, creating a surge in the number of searches, now running at a staggering 2 million per day.
Complaints over data protection law
The change also led to Companies House reporting that it received complaints from members of the public – and several MPs – that retaining and providing access to long-dissolved firms is inconsistent with data protection law. While data legislation does not specify a time limit for records to be kept, it’s not surprising to hear that business people linked to dissolved companies have been citing the acts when arguing for a shorter retention period.
While Tom Watson waits for a reply to a letter he has written to Prime Minister Theresa May seeking assurance that the proposal by Companies House “will not see the light of day”, HMRC has also received a letter urging action to be taken.
The Treasury select committee has called upon the chief executive of HMRC to produce a plan on how delays in delivering work records can be reduced. Previously, a spokesman at HMRC said it was working on ways to improve the service and “reduce demand ..” but did not expect any “short-term leap” in improvement.
Currently, older records of work histories are held on microfiche that are only accessible on machines at HMRC’s Newcastle headquarters, which it says are now operating far beyond their expected lifespan. The machine readers are difficult to repair when they break down and parts are not easy to find.
14 months or more to receive a copy of a claimant’s work history
HMRC have also said that the number of applications for employment records has tripled from 40,000 a year to 120,000 over the past five years. However, it is reported that there are just 36 microfiche machines in working order to carry out the time-consuming searches.
While mesothelioma claim cases are given priority by HMRC, nevertheless, the applications seem to only apply to the families of living claimants. It can now take 14 months or more to receive a copy of a claimant’s work history, by which time the victim may have passed away. Family members then rely upon calling upon former work colleagues who are still alive, to come forward and provide their witness accounts of workplace conditions at the time