All posts by Rory O'Neill

UK union win establishes ‘pre-cancer’ disability protection

Workplace disability discrimination protection for cancer victims in the UK has been widened as a result of a landmark legal case taken by the union Unite. The legal victory will ensure that people suffering with ‘pre-cancer’ will be protected under the Equality Act 2010.

The case involved Unite member Christine Lofty, who worked at First Café in Norwich for 14 years. In March 2015 a lesion on her face was diagnosed as pre-cancerous ‘lentigo malignia’, a form of melanoma. She required biopsies, surgery and skin grafts and took sick leave from her work to undergo this potentially lifesaving treatment.

However, while Mrs Lofty was on sick leave her employer Sadek Hamis saw her in the street and decided that she had taken too much sick leave and dismissed her in December 2015. Unite took a legal case on behalf of Mrs Lofty for unfair dismissal and discrimination, arguing the pre-cancer cells amounted to having cancer, which is considered a disability.

The employment tribunal dismissed the claim, accepting an argument that she had never had cancer. But it had failed to take into account a letter from Mrs Lofty’s GP that “Mrs Lofty had cancer” and that “pre-cancer” was a medical term for cancer that is for the moment contained, often described as “cancer in situ”.

Unite appealed the case to the Employment Appeal Tribunal (EAT), which found in favour of Mrs Lofty. The EAT agreed with Unite’s argument that pre-cancer is a form of cancer and therefore Mrs Lofty was deemed to be disabled at the point of diagnosis, which is when the Equality Act becomes relevant, rather than at the point of dismissal. All forms of cancer are given legal protection from discrimination under the Equality Act.

Unite assistant general secretary for legal services Howard Beckett said: “This is a landmark case which will help ensure that employers cannot dismiss and discriminate against their workers who are suffering from any form of cancer.”

He added: “The fact that this case went to an Employment Appeal Tribunal means it is legally binding and can now be used in similar cases. Unite could not let this case drop as we had to ensure we won justice for victims of cancer.”

Unite news release.


Laos meeting does ground work for plan to end asbestos use

Unions, government officials, health agencies and campaigners have met in Laos to coordinate a plan to ban asbestos.

The workshop, organised by the country’s Ministry of Health and supported by the World Health Organisation (WHO) and Union Aid Abroad – APHEDA, discussed the development of a National Action Plan to ban the use of chrysotile asbestos – the only remaining form of asbestos in commercial use – and to eliminate asbestos-related diseases in the country.  Participants included representatives from nine Ministries, the Lao Federation of Trade Unions, the Cancer Centre of Mittaphap and Mahasot Hospitals and Health Science University.

Dr Juliet Fleischl, the WHO representative to Lao PDR, told the meeting: “About 125 million people in the world are exposed to asbestos at the workplace. According to global estimates, at least 107,000 people die each year from asbestos-related diseases like mesothelioma, lung cancer, laryngeal cancer, ovarian cancer, asbestosis and pleural plaques, resulting from occupational, take-home and neighbourhood exposures.”

The meeting heard the amount of asbestos imported by Laos has been increasing year-on-year, reaching over 8,000 tons in 2013.  This is the highest per capital consumption among Asia-Pacific countries.

A National Asbestos Profile recently developed by the Lao government with support from APHEDA, showed that there were 16 factories producing asbestos-containing roof tiles. The national consumption of asbestos fibre increased almost 240 per cent in just three years between 2010 and 2013.

WHO recommended that the most efficient way to eliminate asbestos-related diseases is to stop the use of chrysotile asbestos. The meeting heard there are safer substitutes for asbestos, and there was a need to adopt the safer alternatives while creating new job opportunities.


UK low level asbestos exposures ruling welcomed

The UK Court of Appeal has reset the threshold for asbestos-related cases, which could pave the way for thousands of potential claims.

Lord Justice Jackson said the High Court judge in Bussey v Anglia Heating Ltd had felt ‘constrained’ by relying on data that was never intended to be used as a yardstick for making claims.

Veronica Bussey, whose husband David died in 2016 of an asbestos cancer, appealed the decision. The Court of Appeal has now found in her favour, allowing her to seek damages from her husband’s former employer – even though the asbestos exposure he endured was below the legal limits for a claim.

Guidelines produced 40 years ago about acceptable levels of asbestos fibres in the air have been used as the test for assessing the claims of victims since the ruling in a 2011 legal case, Williams v the University of Birmingham.

This latest ruling is being hailed by claimant lawyers as an acknowledgment the application of historic data is wrong, and that the courts have wrongly applied the measurements as a guide to employers of a so-called ‘safe’ level of asbestos in which people could work.

Caroline Pinfold, an industrial disease solicitor at London firm Fieldfisher, who represented Veronica Bussey, said: “These data that measured levels of asbestos fibres in the air have been wrongly applied by employers and their lawyers to deny or delay claimants the compensation they deserved. I know the ruling will come as a huge relief for mesothelioma sufferers and their families who have had their cases put on hold waiting for this decision.”

Adrian Budgen, head of the asbestos-related disease team at law firm Irwin Mitchell, said: “We very much welcome the findings of the Court of Appeal, that once a risk of injury was identified, employers ought to have taken steps to minimise risks of injury to employees. The judgment now means that many other victims of asbestos disease who find themselves in a similar position to David Bussey may now be able to access the justice they deserve.”


Next steps in UK group action on coke oven cancers

Hundreds of former steelworkers are believed to have joined a legal case seeking compensation for cancers and lung diseases caused by their jobs. The window to join the multi-million pound legal battle against Tata Steel UK for compensation for respiratory diseases and lung cancers has now closed, after the High Court set a deadline of 23 February 2018 to join an group action.

Lawyers say over 50 workers from the Scunthorpe steelworkers alone have submitted claims. Claimants affected by fumes from the coke ovens in steelworks are being advised by legal experts from the law firms Hugh James, based in Cardiff, and Irwin Mitchell in London. The case is expected to take years to resolve, given the scale of the litigation and amount of evidence to be considered.

At the defendants’ request, and with court approval, claimants with bladder cancer they believe to be caused by coke oven work can also join the group. The separate deadline for those cases is 23 April.

Roger Maddocks, an expert industrial disease lawyer at Irwin Mitchell, said: “The approval of the group litigation order and the admission by the defendants that until an individual was provided with an appropriate respirator they were in breach of duty, were extremely important milestones and moved the victims and their families a further step closer to securing the justice they deserve concerning the exposure to harmful fumes decades ago at a number of coking plants around the UK.”

He added: “The workers we represent, through no fault of their own, developed serious, and in some cases fatal, respiratory illnesses and lung cancers causing them unnecessary pain and suffering when they should be enjoying their later life with their families. Nothing can turn back the clock but this legal action will hopefully provide them with the help, support and treatments needed to make dealing with their illness more comfortable.”

Insurers for Tata Steel have already admitted it was in breach of its duty owed to its employees from 1947 until appropriate respiratory protection was provided to the workforce. The application for a group litigation order alleging employers failed to protect employees from occupational exposure to dust and fumes was approved by the president of the High Court in January 2017.

All potential claims will be assessed and those whose claims are considered to have merit would then join the group register of claimants to form a single, collective court case.


Canadian asbestos ban moves forward

Unions and campaigners have welcomed progress on Canada’s promised asbestos ban. The Canadian federal government had now published a draft law prohibiting the use, sale, import and export of asbestos and products containing the hazardous material.

The federal health and environment departments are both sponsoring the proposed changes aimed at eliminating the market for asbestos products in the country. After decades supporting resistance to asbestos bans, the Canadian government now acknowledges that all forms of asbestos fibres, if inhaled, can cause cancer and other diseases.

According to the proposed regulations, the government estimates asbestos was responsible for approximately 1,900 lung cancer cases and 430 mesothelioma cases in Canada in 2011. A single case of lung cancer or mesothelioma costs Canada’s health system more than $1 million, the government says.

“By launching these new, tougher rules to stop the manufacture, import, use and sale of asbestos, we are following through on our promises to protect all Canadians from exposure to this toxic substance,” said environment and climate change minister Catherine McKenna.

The newly proposed regulations include some exemptions, including an allowance for the cleanup of millions of tonnes of asbestos residue around former mines to make way for redevelopment of the sites.

“What we’ve seen so far, we’re quite pleased,” said Hassan Yussuff, president of the Canadian Labour Congress.

Fe de Leon, a researcher at the Canadian Environmental Law Association (CELA), said: “This regulation provides some certainty that asbestos exposure to Canadians and workers will reduce over time starting in 2019. However, the government should take this opportunity to build on its strategy to address potential exposure from legacy asbestos.”

Laura Lozanski, occupational health and safety officer with the university union CAUT, noted: “Canada has the momentum to be amongst the global leaders to address exposure from legacy asbestos.”

She added: “It would require the collective efforts by key government departments to address very difficult issues including tracking and recording non-federal buildings containing asbestos and those people who have been exposed to asbestos.”

US silica court victory will protect millions

A US industry challenge to a new occupational silica rule has been rejected in its entirety by a three-judge panel for the US Court of Appeals, in what unions have described as a huge victory. However, a spokesperson for the business lobby group the US Chamber of Commerce said it is reviewing the decision, “but we continue to believe that [federal safety regulator] OSHA lacks substantial evidence to support its rule.”

In the United States, more than 2 million workers currently are exposed to some level of silica. In 2016, OSHA published a final rule regulating workplace exposure to the dust, which can cause lung disease, cancer and other chronic health conditions.

The industry lobby had challenged the need for the new standard, whether it was technologically and economically feasible in some industries and its requirements for confidentiality in related medical tests. “We reject all of industry’s challenges,” wrote judges Merrick Garland, Karen Henderson and David Tatel.

In their decision, the judges noted that petitions to review the silica rule came from both industry and unions. “A collection of industry petitioners believes OSHA impermissibly made the rule too stringent and several union petitioners believe OSHA improperly failed to make the rule stringent enough.”

Richard Trumka, president of the US national union federation AFL-CIO, said the court ruling was a ‘huge victory’ for working people. “This will protect millions of workers from disabling disease and save thousands of lives,” he said in a statement. “The court rejected industries’ arguments and directed the agency to further consider additional union safety recommendations. The labour movement worked for decades to win these lifesaving measures, and we are proud to see these standards remain the law of the land.”

He added: “Now we must turn our efforts to making sure this standard is put into full effect, enforced and protected from further attacks so that workers are finally protected from deadly silica dust.”

Russia coerces Sri Lanka to reverse asbestos ban

As the first phase of Sri Lanka’s chrysotile asbestos ban was about to take effect, top chrysotile exporter Russia blocked Sri Lankan tea imports to the country, leading international trade unions and health campaigners to condemn the ‘economic blackmail’.

On 18 December 2017, Russia abruptly halted imports of tea from Sri Lanka, a serious blow to the Sri Lankan economy. Just two days later the Sri Lankan government announced its decision to defer banning asbestos imports from Russia. Sri Lanka had previously announced a phasing out of asbestos starting 1 January 2018, with a full ban planned by 2024.

Sharan Burrow, general secretary of the International Trade Union Confederation (ITUC), said: “Imposing chrysotile asbestos on an unwilling nation is not fair trade, it is culpable homicide. Unions worldwide abhor this cynical economic blackmail. Russia must not and will not be allowed to blow a hole in fair trade rules.”

The National Trade Union Federation of Sri Lanka (NTUF) has urged the country’s government to return to the ban timetable and not bow to Russian pressure. “Being a big country, Russia has resorted to arm twisting its weaker trade partner. It is unfortunate that the Sri Lankan government has to give in to these pressure tactics and accept hazardous material from Russia,” said NTUF secretary general Padmasiri Ranawakaarachchi.

Kate Lee, executive director of union aid organisation APHEDA said: “We are dismayed that such blatant economic blackmail will mean more asbestos related deaths in Sri Lanka in coming years that would not have occurred had the phase out occurred in January as scheduled.”

She added: “Already estimates from global scientists suggest hundreds of deaths from exposure to chrysotile asbestos in Sri Lanka in 2016 alone. With recent high consumption of asbestos and the increased exposure of the population this is certain to rise sharply in coming decades.”

General Electric plant’s compensation refusals get reversed

After a decades-long battle for compensation, the voices of ailing General Electric workers in Canada are finally being heard. Early indications are that around two-thirds of the previously denied occupational cancer and other work-related disease claims made by former employees at the GE plant in Peterborough, Ontario – one of Canada’s oldest industrial operations – are being overturned.

The reversals are part of an ongoing review by the Workplace Safety and Insurance Board (WSIB), which committed to re-open 250 rejected claims for a range of devastating illnesses, following a Toronto Star investigation into hazardous working conditions at the Peterborough factory. Of the 47 files reviewed to date, the WSIB has now approved 30.

Earlier this year, health researchers Bob and Dale DeMatteo published a comprehensive report with the union Unifor which found that GE Peterborough workers were exposed to more than 3,000 toxic chemicals in their workplace between 1945 and 2000, at levels hundreds of times higher than what is now considered safe.

WSIB spokesperson Christine Arnott said the board’s review is considering “new information or evidence that was not available when an original claim decision was made,” including the DeMatteo report. “We want to make sure our decisions reflect the best available scientific evidence and current knowledge of historical exposures,” she said.

A significant part of the evidence that originally weighed against the 660 claims made by GE Peterborough workers between 2004 and 2016 was a health study conducted by General Electric in 2003. That study, which was later submitted to the WSIB, claimed there were no excess cancer rates at the GE factory when controlling for factors like age and smoking. Around half of workers’ claims were subsequently denied, abandoned or withdrawn.

Earlier this year, GE workers’ union Unifor commissioned its own expert review of the GE study, which found it was of “mediocre quality” and “too poorly conducted to instill any faith in its results.” It also pointed to flaws in the methodology that may have misrepresented the exposure risks workers faced on the job.



Health inequalities top of the work cancer agenda

Urgent action is required to protect workers from cancer risks at work, a major international conference has heard. “Workplaces are not merely spaces where people work – they are spaces where people live their lives.  Anything which would be prohibited on grounds of consumer health or environmental protection should also be prohibited in workplaces,” said Laurent Vogel, a researcher at the European Trade Union Institute (ETUI).

His remarks came in a closing address to a November 2017  ‘Work and cancer’ conference in Brussels.  Conference papers have now been made available online.

A study into the costs of occupational cancers in the European Union, commissioned by the ETUI and carried out by a consultancy firm, revealed that the highest levels of exposure to carcinogens are still experienced by manual workers. Taking France as an example, 36 per cent of lung cancers, 10 per cent of bladder cancers and 10 per cent of pharyngeal cancers can be traced back to occupational exposure.

According to ETUI, cancers at these sites are frequently associated with exposure to the carcinogens most commonly encountered in construction and industrial settings, including asbestos, silica, hexavalent chromium, wood dust and polycyclic aromatic hydrocarbons.

Commenting on the existing EU law on workplace carcinogens, ETUI added: “It is worth remembering that the Directive obliges employers to replace carcinogens, ‘as far as is technically possible’, by substances which are not dangerous or are less dangerous to health or safety.”

Weedkiller glyphosate gets a five-year Euro reprieve

European Union countries have voted to renew the licence of glyphosate, a widely used weedkiller at the centre of a major workplace health and environmental controversy. The proposal at the European Commission’s Appeal Committee got 18 votes from countries in favour and nine against, with one abstention, ending months of deadlock. The UK backed the reauthorisation.

The Commission said the new five-year licence was agreed ahead of the 15 December expiry of the existing licence.

Glyphosate is marketed as Roundup by the US agrochemical giant Monsanto. Its use worldwide has risen almost 15-fold since 1996, when so-called ‘Roundup Ready’ crops, genetically engineered to resist glyphosate, were introduced.

The International Agency for Research on Cancer (IARC), which reviewed evidence of the cancer risks to exposed workers, concluded the chemical is “probably carcinogenic”. A counter offensive by industry group Croplife America and Monsanto, who said the IARC assessment was based on flawed science, is believed to have swayed some regulators. However, unions and environmental campaigners have accused the industry lobby of bankrolling ‘doubt science’ to defend their product.

There have also been accusations that European and other regulatory agencies have been ‘captured’ by industry, with officials having undeclared links and many key committees being dominated by scientists working for the industry.

The global food and farming union IUF, several plantation unions in Africa and environmental groups had called for a ban. Following the meeting, France announced it plans to ban the use of glyphosate within three years.