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2020 / 2021 Edition

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Keeping The Noise Down

Are your machines, tools and equipment trustworthy?

By Simon Matthews, specialist disease and illness lawyer, Crutes Law Firm

As an employer of a quarry workforce you should be able to rely upon what the manufacturers and suppliers of your working equipment tell you about its performance and safety features. This has been the duty of manufacturers, suppliers, designers and/or installers since at least as far back as the Health & Safety at Work Act 1974 (HASAW), under which manufacturers are obliged to design and construct products that are ‘safe’ when they are being used or maintained by ‘a person at work’. Additionally, manufacturers are obliged to carry out tests, provide instruction and keep buyers informed about anything that might give rise to a ‘serious risk to the health and safety of employees’.

It is important to know the duties placed upon those who supply machines, tools and equipment, as current relevant guidance places employers under increasingly onerous duties to protect the health, safety and welfare of their employees. Statutory duties include those under The Provision and Use of Work Equipment Regulations 1992 and 1999 (PUWER), The Management of Health and Safety at Work Regulations 1992 and 1999, The Control of Noise at Work Regulations 2005 and The Control of Vibration at Work Regulations 2005. Some of the duties under PUWER leave the employer with no defence, even in reasonable practicality.

It is of value to an employer to note that the Control of Noise at Work Regulations state that ‘employers may use manufacturers’ tool data to assess the risk to their employees from exposure to noise’. This is called ‘noise emission data’.

Employers will also be relieved to know that the Supply of Machinery (Safety) Regulations 1992 and the General Product Safety Regulations 2005 both make it clear that importers and manufacturers, and others in the supply chain, have significant responsibilities to ensure that what they are supplying is ‘safe’. It is to be hoped and expected that a court would interpret the word ‘safe’ in this legislation in the same way as it would interpret it under HASAW and PUWER, as it would be nonsense if it was not consistently interpreted in the same way.

To summarise, employers are required to provide safe equipment to employees. Moreover, manufacturers, suppliers and importers are required to design and construct products that are ‘safe’ when they are being used or maintained by ‘a person at work’ (ie your employee) and to carry out tests, provide instruction and keep buyers informed about ‘anything that might give rise to a serious risk to the health and safety of employees’. This ongoing responsibility has recently been supplemented by the ability of employers to use manufacturer’s data to assess the risk to their employees.

So, does this mean that everything is now satisfactory? Is it not the case that an employer can carry out his risk assessment using the data from manufacturers without fear? Bearing in mind the onerous duties now placed upon manufacturers, suppliers and importers, can employers rely upon this data without question to ensure that they comply with their own onerous duties? Is it not reasonable to use this data for the purposes of preparing their own risk assessment? Regrettably, it is not.

The duty of care owed by you to your employees is non-delegable. Additionally, you, as the employer, should not only be aware of your statutory duties, but also of research and guidance in your business sector carried out by the Health & Safety Executive. That research and guidance includes a number of existing reports on the variations in the performance of tools and equipment between the data provided by the manufacturers (and possibly gleaned under laboratory conditions) compared with the tool’s actual performance when put to use by your employees, at your premises and on your specific materials.

HSC report number HSC/2207/LB (2007) relates to noise emissions from machinery. It suggests that there is a ‘significant potential for manufacturers to underestimate the noise levels that will be emitted by their tools and equipment when put into a real life scenario’. As a result, it recommends reminding manufacturers of their duty under the Supply of Machinery (Safety) Regulations with regard to the provision of noise emission data. In other words, it tells manufacturers that they are not only required to provide noise emission data under The Control of Noise at Work Regulations 2005, but that it has to be accurate and representative of the environment in which it is actually going to be used.

In 2007 there were two HSE reports, one on nibblers and shears and another on polishers and sanders, which suggest that the position in relation to vibration exposure is even less clear. Both reports suggest that, due to the considerable number of variables, ie posture, grip, material, operator skill etc, real vibration levels could be higher or lower than the guidance provided by manufacturers.

As an employer you ought to be able to rely upon manufacturers’ data under the terms of the relevant statutory provisions. In fact, this is a recommended course of action. However, at the same time as the legislation is telling you that you may use this data, the HSE (in very recent reports) is telling you that this data may not be reliable. This places the employer in a difficult position. As an employer, you have been provided with data which, by reference to statutory duty, is obliged to be accurate and yet you have reason to believe, from a highly reputable source, that it may be inaccurate.

To square the circle, it is appropriate to highlight the manufacturer’s duty under the Supply of Machinery (Safety) Regulations. To comply with their duty and to ensure that new machinery can be used safely, manufacturers must:

  • Identify health and safety hazards likely to be present when machinery is used
  • Assess the likely risk of that hazard arising
  • Eliminate the risk, or, if that is not possible
  • Provide safeguards or, if that is not possible
  • Provide information and warning about residual risks that cannot be reduced.

This will undoubtedly sound familiar. The wording used is similar to many employers’ duties under current legislation. It includes a responsibility on the part of the manufacturer to warn their customers, ie you, as an employer, of any hazards and residual risks that cannot be reduced. Unfortunately, the HSE is saying that the quality of this advice is variable.

Manufacturers and suppliers have a statutory duty to your employees and both statutory and contractual duties and obligations to you, as the employer. As such, it is the author’s firm advice that the following points should be considered very carefully if a claim is brought by an employee against you, the employer, for personal injury, disease, illness or death:

  • Does the claim arise from the use of tools or equipment that have been supplied to you with assurances as to their performance, upon which you have relied
  • Did those assurances turn out to be inaccurate
  • Should you consider involving the supplier, importer or manufacturer of equipment in the proceedings?

For further information, contact Simon Matthews on tel: (0191) 233 9734; or email: [email protected]

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