More than 2,700 people are diagnosed with mesothelioma every year in the UK. In the majority of these cases, the cause is prior exposure to asbestos in the workplace. While asbestos was banned in 1999, it was used extensively before then and is still in place in many workplaces and public buildings.
Many patients are able to seek redress from their former employers. But what happens if you were exposed to asbestos when self – employed?
The assumption is often made that you cannot seek redress if you were self – employed and that is true in many cases. If someone owns the business and has control over everything that is done, it is their duty to keep themselves and their employees safe. If they are responsible for the work being carried out in such a way that it results in them being exposed to asbestos, it is hard to see who they could pursue in any claim for compensation.
However, in many cases, the line between employment and self – employment is often significantly more blurred. Sometimes people are engaged by a company to do a job as a self – employed contractor. There are also many people who are ‘bogusly self – employed’, whereby they do everything that an employee would do, but they have self – employed status in order that their employers can avoid obligations such as minimum wage, employers’ National Insurance contributions, sick pay, holiday pay and pension contributions.
Patients who were exposed to asbestos while self – employed can sometimes make a claim if they can show that they were a ‘quasi – employee’. This means that, despite their self – employed status, they were to all intents and purposes an employee of the company.
There are three factors that are taken into account when determining whether or not someone should be treated as an employee:
- Personal service; that is to say, the worker performs the work themselves and does not have the right to send a substitute in their place.
- Control; if the company controls where and when the employee works and what work they do, that suggests the relationship is one of employer and employee.
- Mutuality of obligation; an employer has an obligation to provide work and an employee has an obligation to carry it out. If a worker is free to decline work and can work as and when they wish to do so, this would be indicative of self – employment.
The leading case on this point is Lane v Shire Roofing Co (Oxford) Limited [1995]. The court in that case laid down a set of criteria which are relevant when considering whether or not there is a ‘quasi – employment’ relationship between a self – employed worker and a company:
- Who controlled the work that the self – employed individual carried out?
- Why decided what work was to be done?
- Who specified the way in which the work was to be done?
- Who specified the means by which the work was to be done and the time when it was to be done?
- Who was responsible for ‘hiring and firing’ the team doing the work?
- Who provided the materials, plant, machinery and tools used?
- Whose business was it?
- Whose business was the self – employed individual carrying out?
- Who bore the financial risks of the business?
- Did the self – employed individual have any opportunity of profiting from sound management in the performance of the project?
- Did the self – employed individual’s earnings depend on whether the project went well or badly or made or lost money?
- Who was responsible for the overall safety of the men doing the work, to include the self – employed individual?
There is no set rule on how many of these criteria must be met, but the more that are satisfied the greater the chance of proving that there was a ‘quasi – employment’ relationship and that the company owed a duty of care to the worker.
If you have an asbestos related condition and were exposed to asbestos through self – employment, HASAG can assist you with any benefits you may be entitled to and can also point you in the right direction to obtain advice on whether or not you can bring a legal claim.