The Control of Substances Hazardous to Health Regulations 1988

Citation and commencement

1.  These Regulations may be cited as the Control of Substances Hazardous to Health Regulations 1988 and shall come into force on 1st October 1989.

Interpretation

2.—(1) In these Regulations, unless the context otherwise requires—

“the 1974 Act” means the Health and Safety at Work etc. Act 1974;

“approved” means approved for the time being in writing by the Health and Safety Commission or the Health and Safety Executive as the case may be;

“approved list” means the list published by the Health and Safety Commission entitled “Information Approved for the Classification, Packaging and Labelling of Dangerous Substances (2nd edition)” as revised or re-issued from time to time;

“fumigation” means an operation in which a substance is released into the atmosphere so as to form a gas to control or kill pests or other undesirable organisms and “fumigate” and “fumigant” shall be construed accordingly;

“maximum exposure limit” for a substance hazardous to health means the maximum exposure limit for that substance set out in Schedule 1 in relation to the reference period specified therein when calculated by a method approved by the Health and Safety Commission;

“micro-organism” includes any microscopic biological entity which is capable of replication;

“occupational exposure standard” for a substance hazardous to health means the standard approved by the Health and Safety Commission for that substance in relation to the specified reference period when calculated by a method approved by the Health and Safety Commission;

“substance” means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour (including micro-organisms);

“substance hazardous to health” means any substance (including any preparation) which is—

(a)

a substance which is listed in Part 1A of the approved list as dangerous for supply within the meaning of the Classification, Packaging and Labelling Regulations 1984(1) and for which the general indication of nature of risk is specified as very toxic, toxic, harmful, corrosive or irritant;

(b)

a substance for which a maximum exposure limit is specified in Schedule 1 or for which the Health and Safety Commission has approved an occupational exposure standard;

(c)

a micro-organism which creates a hazard to the health of any person;

(d)

dust of any kind, when present at a substantial concentration in air;

(e)

a substance, not being a substance mentioned in sub-paragraphs (a) to (d) above, which creates a hazard to the health of any person which is comparable with the hazards created by substances mentioned in those sub-paragraphs.

(2) In these Regulations, any reference to an employee being exposed to a substance hazardous to health is a reference to the exposure of that employee to a substance hazardous to health arising out of or in connection with work which is under the control of his employer.

(3) In these Regulations, unless the context otherwise requires—

(a) a reference to a numbered regulation or Schedule is a reference to the regulation or Schedule in these Regulations so numbered; and

(b) a reference to a numbered paragraph is a reference to the paragraph so numbered in the regulation or Schedule in which that reference appears.

Duties under these regulations

3.—(1) Where any duty is placed by these Regulations on an employer in respect of his employees, he shall, so far as is reasonably practicable, be under a like duty in respect of any other person, whether at work or not, who may be affected by the work carried on by the employer except that the duties of the employer—

(a) under regulation 11 (health surveillance) shall not extend to persons who are not his employees; and

(b) under regulations 10 and 12(1) and (2) (which relate respectively to monitoring and information, training etc.) shall not extend to persons who are not his employees, unless those persons are on the premises where the work is being carried on.

(2) These Regulations shall apply to a self-employed person as they apply to an employer and an employee and as if that self-employed person were both an employer and employee, except that regulations 10 and 11 shall not apply to a self-employed person.

(3) The duties imposed by these Regulations shall not extend to the master or crew of a sea-going ship or to the employer of such persons in relation to the normal shipboard activities of a ship’s crew under the direction of the master.

Prohibitions relating to certain substances

4.—(1) Those substances described in column 1 of Schedule 2 are prohibited to the extent set out in the corresponding entry in column 2 of that Schedule.

(2) The importation into the United Kingdom of the following substances and articles is prohibited, namely—

(a) 2-naphthylamine, benzidine, 4—aminodiphenyl, 4—nitrodiphenyl, their salts and any substance containing any of those compounds in a total concentration exceeding 0.1 per cent.;

(b) matches made with white phosphorus,

and any contravention of this paragraph shall be punishable under the Customs and Excise Management Act 1979(2) and not as a contravention of a health and safety regulation.

(3) A person shall not supply during the course of or for use at work any substance or article the importation of which is prohibited by paragraph (2).

Application of regulations 6 to 12

5.—(1) Regulations 6 to 12 shall have effect with a view to protecting persons against risks to their health, whether immediate or delayed, arising from exposure to substances hazardous to health except—

(a) where and to the extent that the following Regulations apply, namely—

(i) the Control of Lead at Work Regulations 1980(3),

(ii) the Control of Asbestos at Work Regulations 1987(4);

(b) where the substance is hazardous to health solely by virtue of its radioactive, explosive or flammable properties, or solely because it is at a high or low temperature or a high pressure;

(c) where the risk to health is a risk to the health of a person to whom the substance is administered in the course of his medical treatment;

(d) below ground in any mine within the meaning of section 180 of the Mines and Quarries Act 1954(5).

(2) In paragraph 1(c) “medical treatment” means medical or dental examination or treatment which is conducted under the direction of a registered medical or dental practitioner and includes any such examination, treatment or administration of any substance conducted for the purpose of research.

(3) Nothing in these Regulations shall prejudice any requirement imposed by or under any enactment relating to public health or the protection of the environment.

Assessment of health risks created by work involving substances hazardous to health

6.—(1) Subject to regulation 17(1) (which relates to transitional provisions), an employer shall not carry on any work which is liable to expose any employees to any substance hazardous to health unless he has made a suitable and sufficient assessment of the risks created by that work to the health of those employees and of the steps that need to be taken to meet the requirements of these Regulations.

(2) The assessment required by paragraph (1) shall be reviewed forthwith if—

(a) there is reason to suspect that the assessment is no longer valid; or

(b) there has been a significant change in the work to which the assessment relates,

and, where as a result of the review, changes in the assessment are required, those changes shall be made.

Prevention or control of exposure to substances hazardous to health

7.—(1) Every employer shall ensure that the exposure of his employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.

(2) So far as is reasonably practicable, the prevention or adequate control of exposure of employees to a substance hazardous to health shall be secured by measures other than the provision of personal protective equipment.

(3) Where the measures taken in accordance with paragraph (2) do not prevent, or provide adequate control of, exposure to substances hazardous to the health of employees, then, in addition to taking those measures, the employer shall provide those employees with such suitable personal protective equipment as will adequately control their exposure to substances hazardous to health.

(4) Where there is exposure to a substance for which a maximum exposure limit is specified in Schedule 1, the control of exposure shall, so far as the inhalation of that substance is concerned, only be treated as being adequate if the level of exposure is reduced so far as is reasonably practicable and in any case below the maximum exposure limit.

(5) Without prejudice to the generality of paragraph (1), where there is exposure to a substance for which an occupational exposure standard has been approved, the control of exposure shall, so far as the inhalation of that substance is concerned, be treated as being adequate if—

(a) that occupational exposure standard is not exceeded; or

(b) where that occupational exposure standard is exceeded, the employer identifies the reasons for the standard being exceeded and takes appropriate action to remedy the situation as soon as is reasonably practicable.

(6) Subject to regulation 17(2) (which relates to transitional provisions), where respiratory protective equipment is provided in pursuance of this regulation, then it shall—

(a) be suitable for the purpose; and

(b) be of a type approved or shall conform to a standard approved, in either case, by the Health and Safety Executive.

(7) In this regulation, “adequate” means adequate having regard only to the nature of the substance and the nature and degree of exposure to substances hazardous to health and “adequately” shall be construed accordingly.

Use of control measures etc.

8.—(1) Every employer who provides any control measure, personal protective equipment or other thing or facility pursuant to these regulations shall take all reasonable steps to ensure that it is properly used or applied as the case may be.

(2) Every employee shall make full and proper use of any control measure, personal protective equipment or other thing or facility provided pursuant to these regulations and, if he discovers any defect therein, he shall report it forthwith to his employer.

Maintenance, examination and test of control measures etc.

9.—(1) Every employer who provides any control measure to meet the requirements of regulation 7 shall ensure that it is maintained in an efficient state, in efficient working order and in good repair.

(2) Subject to regulation 17(3) (which relates to transitional provisions), where engineering controls are provided to meet the requirements of regulation 7, the employer shall ensure that thorough examinations and tests of those engineering controls are carried out—

(a) in the case of local exhaust ventilation plant, at least once every 14 months, or for local exhaust ventilation plant used in conjunction with a process specified in column 1 of Schedule 3, at the interval specified in the corresponding entry in column 2 of that Schedule;

(b) in any other case, at suitable intervals.

(3) Where respiratory protective equipment (other than disposable respiratory protective equipment) is provided to meet the requirements of regulation 7, the employer shall ensure that at suitable intervals thorough examinations and, where appropriate, tests of that equipment are carried out.

(4) Every employer shall keep a suitable record of the examinations and tests carried out in pursuance of paragraphs (2) and (3) and of any repairs carried out as a result of those examinations and tests, and that record or a suitable summary thereof shall be kept available for at least 5 years from the date on which it was made.

Monitoring exposure at the workplace

10.—(1) In any case in which—

(a) it is requisite for ensuring the maintenance of adequate control of the exposure of employees to substances hazardous to health; or

(b) it is otherwise requisite for protecting the health of employees,

the employer shall ensure that the exposure of employees to substances hazardous to health is monitored in accordance with a suitable procedure.

(2) Where a substance or process is specified in column 1 of Schedule 4, monitoring shall be carried out at the frequency specified in the corresponding entry in column 2 of that Schedule.

(3) The employer shall keep a suitable record of any monitoring carried out for the purpose of this regulation and that record or a suitable summary thereof shall be kept available—

(a) where the record is representative of the personal exposures of identifiable employees, for at least 30 years;

(b) in any other case, for at least 5 years.

Health surveillance

11.—(1) Where it is appropriate for the protection of the health of his employees who are, or are liable to be, exposed to a substance hazardous to health, the employer shall ensure that such employees are under suitable health surveillance.

(2) Health surveillance shall be treated as being appropriate where—

(a) the employee is exposed to one of the substances and is engaged in a process specified in Schedule 5, unless that exposure is not significant; or

(b) the exposure of the employee to a substance hazardous to health 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 his work and there are valid techniques for detecting indications of the disease or the effect.

(3) The employer shall ensure that a health record, containing particulars approved by the Health and Safety Executive, in respect of each of his employees to whom paragraph (1) relates is made and maintained and that that record or a copy thereof is kept in a suitable form for at least 30 years from the date of the last entry made in it.

(4) Where an employer who holds records in accordance with paragraph (3) ceases to trade, he shall forthwith notify the Health and Safety Executive thereof in writing and offer those records to the Executive.

(5) Subject to regulation 17(4) (which relates to transitional provisions), if an employee is exposed to a substance specified in Schedule 5 and is engaged in a process specified therein, the health surveillance required under paragraph (1) shall include medical surveillance under the supervision of an employment medical adviser or appointed doctor at intervals of not more than 12 months or at such shorter intervals as the employment medical adviser or appointed doctor may require.

(6) Where an employee is subject to medical surveillance in accordance with paragraph (5) and an employment medical adviser or appointed doctor has certified in the health record of that employee that in his professional opinion that employee should not be engaged in work which exposes him to that substance or that he should only be so engaged under conditions specified in the record, the employer shall not permit the employee to be engaged in such work except in accordance with the conditions, if any, specified in the health record, unless that entry has been cancelled by an employment medical adviser or appointed doctor.

(7) Where an employee is subject to medical surveillance in accordance with paragraph (5) and an employment medical adviser or appointed doctor has certified by an entry in his health record that medical surveillance should be continued after his exposure to that substance has ceased, the employer shall ensure that the medical surveillance of that employee is continued in accordance with that entry while he is employed by the employer, unless that entry has been cancelled by an employment medical adviser or appointed doctor.

(8) On reasonable notice being given, the employer shall allow any of his employees access to the health record which relates to him.

(9) An employee to whom this regulation applies shall, when required by his employer and at the cost of the employer, present himself during his working hours for such health surveillance procedures as may be required for the purposes of paragraph (1) and, in the case of an employee who is subject to medical surveillance in accordance with paragraph (5), shall furnish the employment medical adviser or appointed doctor with such information concerning his health as the employment medical adviser or appointed doctor may reasonably require.

(10) Where, for the purpose of carrying out his functions under these regulations, an employment medical adviser or appointed doctor requires to inspect any workplace or any record kept for the purposes of these Regulations, the employer shall permit him to do so.

(11) Where an employee or an employer is aggrieved by a decision recorded in the health record by an employment medical adviser or appointed doctor to suspend an employee from work which exposes him to a substance hazardous to health (or to impose conditions on such work), he may, by an application in writing to the Executive within 28 days of the date on which he was notified of the decision, apply for that decision to be reviewed in accordance with a procedure approved for the purposes of this paragraph by the Health and Safety Commission, and the result of that review shall be notified to the employee and employer and entered in the health record in accordance with the approved procedure.

(12) In this regulation—

“appointed doctor” means a fully registered medical practitioner who is appointed for the time being in writing by the Health and Safety Executive for the purposes of this regulation;

“employment medical adviser” means an employment medical adviser appointed under section 56 of the 1974 Act;

“health surveillance” includes biological monitoring.

Information, instruction and training for persons who may be exposed to substances hazardous to health

12.—(1) An employer who undertakes work which may expose any of his employees to substances hazardous to health shall provide that employee with such information, instruction and training as is suitable and sufficient for him to know—

(a) the risks to health created by such exposure; and

(b) the precautions which should be taken.

(2) Without prejudice to the generality of paragraph (1), the information provided under that paragraph shall include—

(a) information on the results of any monitoring of exposure at the workplace in accordance with regulation 10 and, in particular, in the case of any substance hazardous to health specified in Schedule 1, the employee or his representatives shall be informed forthwith, if the results of such monitoring show that the maximum exposure limit has been exceeded; and

(b) information on the collective results of any health surveillance undertaken in accordance with regulation 11 in a form calculated to prevent it from being identified as relating to any particular person.

(3) Every employer shall ensure that any person (whether or not his employee) who carries out any work in connection with the employer’s duties under these regulations has the necessary information, instruction and training.

Provisions relating to certain fumigations

13.—(1) This regulation shall apply to fumigations in which the fumigant used or intended to be used is hydrogen cyanide, ethylene oxide, phosphine or methyl bromide, except that this regulation shall not apply to fumigations using the fumigant specified in column 1 of Schedule 6 when the nature of the fumigation is that specified in the corresponding entry in column 2 of that Schedule.

(2) An employer shall not undertake any fumigation to which this regulation applies unless he has—

(a) notified the persons specified in Part I of Schedule 7 of his intention to undertake the fumigation; and

(b) provided to those persons the information specified in Part II of that Schedule,

at least 24 hours in advance, or such shorter time in advance, as the persons required to be notified may agree.

(3) An employer who undertakes a fumigation to which this regulation applies shall ensure that, before the fumigant is released, suitable warning notices have been affixed at all points of reasonable access to the premises or to those parts of the premises in which the fumigation is to be carried out and that after the fumigation has been completed, and the premises are safe to enter, those warning notices are removed.

Exemption certificates

14.—(1) Subject to paragraph (2) and to any of the provisions imposed by the European Communities in respect of the protection of workers from the risks related to exposure to chemical, physical and biological agents at work, the Executive may, by a certificate in writing, exempt any person or class of persons or any substance or class of substances from all or any of the requirements or prohibitions imposed by these Regulations and any such exemption may be granted subject to conditions and to a limit of time and may be revoked by a certificate in writing at any time.

(2) The Executive shall not grant any such exemption unless having regard to the circumstances of the case and, in particular, to—

(a) the conditions, if any, which it proposes to attach to the exemption; and

(b) any other requirements imposed by or under any enactments which apply to the case,

it is satisfied that the health and safety of persons who are likely to be affected by the exemption will not be prejudiced in consequence of it.

Extension outside Great Britain

15.  These Regulations shall apply to any work outside Great Britain to which sections 1 to 59 and 80 to 82 of the 1974 Act apply by virtue of Article 7 of the Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 1977(6) as they apply to work in Great Britain.

Defence in proceedings for contravention of these Regulations

16.  In any proceedings for an offence consisting of a contravention of these Regulations it shall be a defence for any person to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of that offence.

Transitional provisions

17.—(1) Where work which is liable to expose employees to substances hazardous to health was commenced before 1st October 1989 or within 3 months after that date, it shall be a sufficient compliance with regulation 6(1) if the assessment required by that regulation is made before 1st January 1990.

(2) Until 1st January 1990, respiratory protective equipment required to be approved in accordance with regulation 7(6) need not be so approved, but until that date any such equipment which was required to be approved under any regulation revoked by these Regulations shall be approved in accordance with those Regulations or in accordance with the said regulation 7(6).

(3) Where, in respect of the engineering controls to which regulation 9(2) applies, immediately before 1st October 1989 local exhaust ventilation plant was required to be thoroughly examined and tested under any of the relevant statutory provisions then in force, the first thorough examination and test under regulation 9(2) shall not be required until the date on which it would have next been required under the former provision had that provision not been revoked.

(4) Where, in respect of an employee to whom regulation 11(1) applies, immediately before 1st October 1989 the employee was subject to health surveillance under any of the relevant statutory provisions then in force, he shall not be required to be medically examined for the first time under regulation 11(5) until the date on which he would have next been required to be so examined under the former provision had that provision not been revoked.

Modifications relating to the Ministry of Defence etc.

18.—(1) In this regulation, any reference to—

(a) “visiting forces” is a reference to visiting forces within the meaning of any provision of Part I of the Visiting Forces Act 1952(7); and

(b) “headquarters or organisation” is a reference to a headquarters or organisation designated for the purposes of the International Headquarters and Defence Organisations Act 1964(8).

(2) The Secretary of State for Defence may, in the interests of national security, by a certificate in writing exempt—

(a) Her Majesty’s Forces;

(b) visting forces;

(c) any member of a visiting force working in or attached to any headquarters or organisation; or

(d) any person engaged in work involving substances hazardous to health, if that person is under the direct supervision of a representative of the Secretary of State for Defence,

from all or any of the requirements or prohibitions imposed by these regulations and any such exemption may be granted subject to conditions and to a limit of time and may be revoked at any time by a certificate in writing, except that, where any such exemption is granted, suitable arrangements shall be made for the assessment of the health risks created by the work involving substances hazardous to health and for adequately controlling the exposure to those substances of persons to whom the exemption relates.

(3) Regulation 11(11) shall not apply in relation to—

(a) Her Majesty’s Forces;

(b) visiting forces; or

(c) any member of a visiting force working in or attached to any headquarters or organisation.

Repeals, revocations and savings

19.—(1) The provisions of—

(a) the Mines and Quarries Act 1954(9) specified in column 1 of Part I of Schedule 8; and

(b) the Factories Act 1961(10) specified in column 1 of Part II of Schedule 8,

are repealed to the extent set out in the entry opposite thereto in the corresponding entry in column 2 of the respective Part.

(2) The Hydrogen Cyanide (Fumigation) Act 1937(11) is repealed.

(3) The regulations and orders specified in column 1 of Schedule 9 are revoked or, where expressly stated, modified to the extent set out in the entry opposite thereto in column 2 of that Schedule.

(4) Any record or register required to be kept under any regulations or orders revoked by paragraph (3) shall, notwithstanding those revocations, be kept in the same manner and for the same period as if these Regulations had not been made, except that the Health and Safety Executive may approve the keeping of records at a place or in a form other than at the place where, or in the form in which, records were required to be kept under the regulations or orders so revoked.

Signed by order of the Secretary of State.

Patrick Nicholls

Parliamentary Under Secretary of State,

Department of Employment

26th September 1988