Can I make an asbestos compensation claim if my former employer no longer exists?
There is a common belief that you are unable to pursue an asbestos related compensation claim against a former employer if they have stopped trading and no longer exist. This is a mistaken understanding that needs to be clarified.
An asbestos compensation claim can be pursued against a dissolved employer if:
- You can positively identify the name of your former employer and;
- Their employers’ liability insurance cover can be identified for the time of exposure to asbestos, and;
- You can prove the former employer was legally responsible for the asbestos exposure.
What if I am unsure of the employers’ details?
If a client is unsure of a former employer’s name, they may think there is no possibility of a compensation claim even starting if they do not have this basic information.
It obviously helps our investigation if clients can name their previous employer. Helpfully, some clients are able to produce paperwork to assist, such as their old employment contract, letters, photographs or old payslips. Others may be able to supply an old CV and some may just rely on their memory to recall such information.
One of the first things we do in an asbestos claim is request our client’s employment history record from the HMRC. The HMRC can provide details of all employers from 1961 onwards, when employers were required to start submitting National Insurance records to the tax office. This vital record is often all that is needed to prompt our clients’ memory about an employer’s identity.
In addition to obtaining the HMRC employment schedule, we will research the Companies House archives to obtain more information about a potential company such as trading addresses, names of directors and the company’s formal documents which will detail the nature of the business.
However, there are often cases where the employment is prior to 1961, or our client was very young and not earning enough to be registered by their former employers and so they will not show on the HMRC employment schedule or our client was self-employed. Those difficulties are reasons in themselves why it is so important to get the help of specialist asbestos lawyers who do this work every day.
Investigating the identity of former employers based on very little information from our clients, and bearing in mind the employment usually took place many decades ago, is a unique aspect of asbestos case work but the Asbestos Team at HJA are specialists in this area.
What is employers’ liability (EL) insurance?
Employers are required by law to insure themselves against liability for injury or disease caused to their employees whilst at work. As a result, it is often the case that the relevant EL insurance companies are the ones paying the compensation to our clients, even if the employing company has ceased trading a long time ago.
Again there can be issues with establishing the correct EL cover in these claims. It may be that the insurance found doesn’t cover the period of our client’s exposure to asbestos or the insurance policy excludes liability for asbestos exposure in the course of specific activities or work locations. It may simply be that no EL insurance can be found because the employer did not take any such insurance out prior to when they were required to by law or the records have been destroyed over the years. The Asbestos Team at HJA carry out this research on a daily basis and have various sources into which we can try to identify the relevant EL insurance for the period of employment required.
If the former employer is no longer trading and the relevant EL insurance cannot be identified, an asbestos claim will not be able to proceed. However, there is a Scheme of last resort which is a vital safety net for our mesothelioma clients. Our blog on the Diffuse Mesothelioma Payment Scheme (DMPS) explains what this Scheme is and why it is important.
On the rare occasion that a former employing company is still trading today, we can pursue the company direct. It may be the company cannot identify its EL insurance for the period of our client’s exposure to asbestos many years ago but despite that problem, the defendant company can be ordered by a Court to pay the compensation to our clients
What asbestos exposure evidence do I need?
Identifying the correct company or their insurers may be of no use if our clients cannot provide sufficient evidence to determine where and how they were exposed to asbestos. The fact that a person may have been exposed to asbestos through no fault of their own is, unfortunately, not enough to succeed in a compensation claim egsimply saying there were asbestos materials in the building is not strong evidence unless a client can describe how the harmful asbestos dust and fibres were inhaled.
Unfortunately for some asbestos disease sufferers they may have no idea whatsoever where and when their exposure to asbestos occurred, let alone point a finger at a potentially negligent previous employer. They will sadly be left with potentially life limiting conditions that have been caused by asbestos inhalation but from an unknown source. Our compassionate and dedicated Asbestos Team lawyers will go through all potential sources of exposure to asbestos – both during employment and outside of employment – with a client, to ensure no stone is unturned.
The take away note is that a compensation claim can be investigated and hopefully pursued against a company that is no longer in existence, even based on very limited information but it is important to instruct a specialist lawyer who deals with asbestos claims and who is well versed in sourcing the vital information that is needed to pursue legal action.