In depth

COSHH Regulations: a quick review

Gateley Legal

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With the Health and Safety Executive (HSE) cracking down on dust emanating from construction sites last year this is a good time to catch up on your obligations in relation to dust where you own or operate a construction site.

Dust can cause all manner of health problems, most prominently asbestosis and cancer, so it should come as no surprise that there is a stringent and detailed legal regime in The Control of Substances Hazardous to Health Regulations 2002 (the COSHH Regulations) governing dust in workplaces such as constructions sites. 

The HSE has extensive enforcement powers to sanction those who break these regulations, so it is of the utmost importance for the health of your staff and your business that work generating dust is conducted in a safe manner.

Construction sites can generate a number of different types of dust, such as asbestos, silica and wood dust, so it is crucial for employers to know what types of materials are being worked on site and whether or not those materials could cause dust or other emanations. 

Scope of the Regulations

The first thing of importance to note is that the COSHH Regulations apply not only to employees on a site but anyone else who may be affected by the work (with some key exceptions detailed below). The COSHH Regulations, therefore, cover occasional site visitors, such as inspectors and sub-contractors, as well as the wider public who may come into contact with the site.

The regulations apply to:

  1. employers; 
  2. the self-employed; and
  3.  anyone who controls the work of another involving hazardous substances.

In this article, the above are referred to as employers for ease of reference.

Substance prohibitions 

The COSHH Regulations prohibit a number of chemical substances, such as matches made with white phosphorous, the details of which can be found in Schedule 2 of the COSHH Regulations.

Risk assessments

As ever, with potentially dangerous construction work, employers are expected to carry out a detailed risk assessment of their site to make sure these regulations are complied with. 

The risk assessment must be reviewed regularly and immediately when there is a change to the work that the risk assessment relates to or the risk assessment becomes invalid. 

The employer must also record both the results of the risk assessment and the steps taken to avoid risks if employing 5 or more employees.

Control of substances

Employers are subject to a duty under the COSHH Regulations to prevent their employees from being exposed to hazardous substances or, where this cannot be avoided, that such exposure is adequately controlled.

Employers are encouraged to substitute hazard substances for non-hazardous ones in order to avoid employee exposure.

Where avoiding exposure is not possible, employers are expected to apply protective measures to mitigate the risks, including:

  •  through the design and use of appropriate work processes, systems and engineering controls;
  •  the control of exposure at source, including adequate ventilation systems and appropriate organisational measures; and
  • (where adequate control cannot be achieved and when the above are already in place) the provision of suitable personal protective equipment.

These should include:

  • providing arrangements for the safe handling, storage and transport of hazardous substances (including hazardous waste);
  • adopting suitable maintenance procedures;
  • minimising the number of employees exposed, as well as the duration and intensity of the exposure;
  • controlling the working environment (such as ensuring it is well ventilated); and
  • providing appropriate hygiene measures (such as washing facilities).

There are also special provisions relating to carcinogenic substances, which include:

  • where practical, totally enclosing the handling systems;
  • prohibiting eating, drinking and smoking in areas where carcinogens are present
  • regularly cleaning surfaces;
  • controlling the working environment (such as providing appropriate ventilation); and
  • storing, handling and disposing of carcinogens safely.

Where a maximum exposure limit is approved, exposure should be limited to as far below that level as is possible to achieve. If this standard is exceeded for whatever reason, the employer should identify why this has happened and take appropriate remedial action.

For more information on the requirements relating to personal protective equipment, see the Personal Protective Equipment Regulations 2002(1).

Control measures

Employers have a responsibility not only to provide control measures but to ensure that those measures are properly used or applied and that those measures are maintained to the correct standards. 

Conversely, employees have a responsibility to return equipment after use and report defects to the employer.

Employers are also obliged to record examinations and tests of engineering controls (such as local exhaust ventilation plant) and reusable respiratory protective equipment, as well as any repairs carried out as a result. These must be kept for at least five years.

Employers must also ensure that personal protective equipment, including protective clothing, is properly stored, regularly checked and repaired or replaced before further use if found to be defective.

Contaminated equipment must also be kept apart from clean equipment and decontaminated before further use (or destroyed if not cleaned and reused).

Monitoring exposure

Employers have a duty to monitor the exposure of employees where required to control their exposure or otherwise to protect their health. Such monitoring should occur at regular intervals and where any change occurs which may affect exposure. 

Suitable records of exposure should also be maintained by the employer, to be kept for at least five years and, where the record is representative of the personal exposures of identifiable employees, at least 40 years.

Employees are entitled to access their personal monitoring record (on receipt of reasonable notice). Monitoring records should also be available should they be requested by government representatives.

Health surveillance: Health surveillance is required whenever employees are exposed to certain hazardous substances (as specified in the COSHH Regulations) or generally when the exposure is:

  • linked with an identifiable disease or adverse health effect;
  • there is a reasonable likelihood the work could lead to the disease or effect; and
  • there are low-risk techniques available to detect the disease or effect.

The employer must keep records of the health surveillance carried out. Again, such records should be made available to the employee or the government’s appointed representatives when requested.

Certain substances require more detailed surveillance and are beyond the scope of this article. 

Employees are required by the regulations to take part in health surveillance in the course of their work.

If an employer becomes aware that an employee has a disease or adverse health effect which could have been caused by exposure to a hazardous substance (in the opinion of a suitably qualified doctor) the employer must:

  • ensure the employee is informed (by a suitably qualified person) and given information and advice on further health surveillance;
  • review the assessment;
  • review the measures they have in place to control hazardous substances;
  • consider moving the employee to ensure they are not exposed to the hazardous substance further; and
  • provide for reviews of the health of other employees who have been similarly exposed.

Information, instruction and training

Employers are required under the COSHH Regulations to provide all employees (and anyone else who carries out relevant work for the employer) with suitable and sufficient information, instruction and training. This should include:

  • specific information on which substances are hazardous and what risks they pose, including their names, information on exposure standards and safety data sheets
  • the main findings of risk assessments;
  • information on appropriate precautions to take when working with hazardous substances;
  • the results of any monitoring of exposure; 
  • the collective results of health surveillance; and
  • additional information concerning biological agents.

Any information, instruction and training provided should be provided in an appropriate manner to the level, type and duration of the exposure and should take account of any significant changes in working methods.

Dealing with accidents, incidents and emergencies

Employers must ensure that procedures (including appropriate first aid and safety drills) have been prepared, information on emergency arrangements (such as details of specific hazards and hazard identification, and hazards that are likely to arise as a result of an emergency) is available and suitable warning and communication systems are in place to ensure that an accident, incident or emergency is responded to appropriately immediately upon occurrence.

This information should be readily available to be provided to the relevant emergency services in the event an incident occurs and is on display in the workplace (if appropriate).

If an accident, incident or emergency occurs which is related to the presence of a substance hazardous to health the employer must:

  • take immediate steps to rectify the situation (including mitigating the effects, restoring the situation to normal and informing employees who may be affected);
  • ensure that the only employees allowed on the site of the contamination are there to carry out repairs or necessary work and that in doing so they are supplied with suitable personal protective equipment and any necessary specialised safety equipment and plant; and
  • take specific precautions in relation to accidents involving biological agents (which are beyond the scope of this article). 

Do you have a specific situation you'd like our opinion on?

Failing to follow these regulations can lead to hefty fines, with the HSE’s recent crackdown on construction sites and dust being just the most recent example of the regulator getting tough on those who don’t follow the rules. If you’d like to know more about how the regulations affect your business, or if you have a specific situation you’d like our opinion on, please feel free to contact a member of the regulatory team listed below.

Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.

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