PI Brief Update

Over Year-Long Wait for Employment Records from HMRC is Denial of Access to Justice and Breach of ECHR - Roger Maddocks, Irwin Mitchell LLP

30/05/16. Workplace-related illness and disease can be extremely serious for those affected with many conditions severely affecting quality of life, causing those suffering to be unable to work due to the severity of their symptoms and in many cases causing premature death.

Those who develop illness and diseases as a result of their employment have the right to access justice to ensure that their former or current employers, who may have not done enough to protect them, are held to account and to obtain fair compensation that they are entitled to.

However, the process of taking legal action for many people who have developed life-limiting conditions is not as simple as it should be, as they, and their legal representatives are currently being forced to wait for over a year for HM Revenues and Customs (HMRC) to provide employment records. This is not only a frustration for victims, but it essentially denies them access to compensation at the time they need it most; and in some cases serves to deny them access to justice entirely.

Access to work history records kept by the HMRC is vital; firstly to correctly identify employers - all too often there are number of companies with similar names; and secondly to confirm dates of employment - vital if the company is no longer in business, so that the correct insurers on cover at the time when exposure took place can be identified.

Currently, HMRC is unable to provide records in a timely manner for older workers as records for periods of employment prior to 1997 are stored on microfilm, an obsolete technology, which makes recovering them a labour intensive and difficult procedure. A task made even more difficult by the fact HMRC does not have enough machines to keep up with the number of employment history requests.

What this means for those suffering with life-limiting conditions, such as lung cancer caused by exposure to asbestos dust (or other substances) or those exposed to fumes while working at coking plants across the UK, is that they face over a year-long wait for employment records.

Those who have lost loved ones are also facing frustrating wait of over a year due to the backlog of work history requests that have built up and it is time for this issue to be addressed. In some cases delays of over a year can mean families lose out on compensation completely.

If records are not received it can prevent the identification of the correct defendants to commence court proceedings before the expiry of the limitation period or because the victim dies before the records are available to facilitate completion of the investigation into his or her work history and history of exposure with every relevant employer.

Currently applications for employment histories for living claimants suffering from mesothelioma are fast-tracked. However, the HMRC is not implementing these same measures for living claimants suffering from other terminal conditions, such as asbestos-related lung cancer or posthumous mesothelioma claims where currently the backlog is such that claimants requesting employment histories are having to wait 383 days.

Clearly these delays, which are impacting those who are desperate for answers about why, where and when they were exposed to the working conditions that caused their health to deteriorate need to be addressed.

We believe that the cause of these delays is the decision to store employment data on an obsolete technology. This has led to the creation of a labour intensive process to access this data and the lack of equipment to read microfilms.

We have yet to receive any indication that HMRC is taking any adequate steps to address these serious issues, which are having a significant impact on those who have developed terrible illnesses as a result of their employment and who are desperate for answers from their former employers about why steps were not taken to protect them. To date HMRC has declined explain what practical steps is has taken to try and solve the problem, despite being requested to do so.

HMRC is an arm of government one of whose responsibilities is to ensure that in respect of civil rights citizens can have a fair and public hearing to determine their rights within a reasonable time, consistent with Article 6 of the European Convention on Human Rights (ECHR)., Delay in providing HMRC histories is serving to delay determination of claims within a reasonable time and in some cases preventing fair determination of cases at all; in either case in contravention of the ECHR

It is time for the government to act and to do so without delay.

Roger Maddocks
Partner
Irwin Mitchell LLP Solicitors

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