Control of substances hazardous to health

The Control of Substances Hazardous to Health Regulations 2002 (COSHH 2002) cover the control of risks from harmful chemicals and other dangerous substances, including biological agents. The regulations apply to:

• chemical substances such as paints, cleaning materials, metals, pesticides and insecticides;

• biological agents such as pathogens or cell cultures;

• carcinogens (cancer-causing substances);

• substances that have been assigned workplace exposure limits (see page 90); and

• dusts.

They cover toxic, harmful, corrosive and irritant substances and they prohibit the use of several very dangerous substances for certain purposes (listed in Schedule 2 of the regulations.) They do not apply to asbestos or lead. There are separate regulations to deal with these hazards.

A key requirement under COSHH is the duty to carry out risk assessments (see Chapter 3). Regulation 6 says employers should not carry out work that is liable to expose employees to any substances hazardous to health unless they have made a suitable and sufficient assessment of the risks. All employers must carry out a risk assessment, record any significant findings and review the assessment regularly.

Under the regulations, the risk assessment must consider a specific list of items including the hazardous properties of the substance, information provided in safety data sheets and any workplace exposure limit (WEL).

Regulation 7 sets out what an employer must do once a potential risk to health has been identified. Employers must ensure that the exposure of workers is either prevented or adequately controlled, by working through a hierarchy of measures.

The emphasis is on prevention. Employers who fail to consider firstly whether exposure can be prevented are in breach of the regulations. The best way to comply with this requirement is to completely eliminate the use or production of substances hazardous to health in the workplace.

The regulations list the control measures to be applied in order of priority, where elimination or substitution is not possible. These are:

• the design and use of appropriate work processes, systems and engineering controls and the provision and use of suitable work equipment and materials;

• the control of exposure at source, including adequate ventilation systems and appropriate organisational measures;

• lastly, and only if adequate control cannot be achieved by other means, the supply of suitable personal protective equipment (PPE).

Regulation 7 imposes an absolute duty on employers to prevent exposure to hazardous substances, as the Court of Appeal’s decision in the following case demonstrates:

The judge in the Naylor case cited the Dugmore case below as crucial in clarifying the regulations:

The ruling confirmed that the duty to control exposure is absolute. Employers cannot argue that it is not “reasonably practicable” to introduce control measures. The qualification of “reasonable practicability” refers only to prevention and not to the secondary duty of adequate control. Employers must ensure that any control measures or PPE are used properly and that employees make full and proper use of any control measures or PPE provided (Regulation 8).

Employers must keep control measures in good working order and repair and ensure that regular tests and examinations of equipment are carried out and appropriate records kept (Regulation 9).

Regulation 10 requires employers to monitor exposure to hazardous substances in particular circumstances. Records must be kept of personal exposures for at least 40 years and in other cases for at least five years.

Health surveillance is required under Regulation 11 where employees have been exposed to one of the substances listed in Schedule 6 of the regulations, or where:

• the exposure of employees is such that an identifiable disease or adverse health effect may be related to the exposure;

• there is a reasonable likelihood that the disease or effect may occur under the particular conditions of the work; and

• there are valid techniques for detecting indications of the disease or the effect.

In March 2013, the HSE launched online guidelines on health surveillance. It says that the clear and simple guidance makes it easier for employers to decide whether their workers need health surveillance, how to go about it and how to use the results. It also makes it clearer when action is not needed.

The HSE’s online guidance replaces Health surveillance at work (HSG61) and can be found online at: www.hse.gov.uk/health-surveillance/index.htm.

Under Regulation 12, employees must be given sufficient information, instruction and training about the risks involved and the precautions that should be taken. They are also entitled to see the results of environmental monitoring and the collective results of any health surveillance.

Regulation 13 requires employers to deal with accidents, incidents and emergencies. Emergency procedures may be triggered by a serious fire, spillage or flood of corrosive agent liable to make contact with skin; a failure to contain biological or carcinogenic agents; or an acute process failure that could lead to a sudden release of chemicals. There are additional controls set out in the regulations for work with carcinogens (cancer-causing substances) and biological agents.

In May 2013, the TUC published a bulletin on carcinogens as part of its safety manifesto, Health and safety: Time for change campaign. This sets out that around 300,000 people are diagnosed with cancer in the UK every year, and that every year more than 150,000 people die from the disease. It estimates that of these around 20,000 cases a year and 15,000-18,000 deaths are work-related and it says that all occupational cancers are avoidable.

It points out that there is no safe exposure limit for any carcinogen and even levels well below the Workplace Exposure Limits (WELS) can lead to some workers developing cancer. And it says that the aim should be to remove all exposure to any known or suspected carcinogen in the workplace.

“We should not accept levels which will continue to lead to workers developing avoidable cancers just because either the European Commission or HSE has decided that this level is ‘acceptable’”, it says. Carcinogens in the workplace can be eliminated by changing processes, substituting for other substances or, where that is not possible, ensuring that levels be reduced as low as possible and workers fully protected from any contact with a cancer-causing agent.

Examples of where a cancer-causing agent cannot be removed, but exposure by a worker to any risk can be removed, are radiographers and radiation, quarry workers to silica and bus mechanics to diesel exhaust.

Employers should only use a carcinogen if there is no reasonable alternative and they are required to remove or reduce exposure “as far as is reasonable practical”.

With regard to new substances, trade unions support the “precautionary principle” which means that if there is a reasonable possibility that a substance may cause harm then there should be a presumption that it will and therefore should be controlled.

Unions are also calling for an enforcement-led campaign by the HSE and local authorities aimed at ensuring that employers who continue to expose their workers to carcinogens are prosecuted. Exposure to a WEL is not acceptable when removal or substitution is an option.