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COSHH is the Control of Substances Hazardous to Health Regulations 2002. Generally, COSHH requires employers and the self-employed to control exposure to hazardous substances in order to prevent harm to or ill health of employees and non-employees alike.

Who does COSHH apply to?

The duties under COSHH apply to employers and to the self-employed, except  in limited circumstances.

Where a duty is placed by the regulations on an employer in respect of his employees, the employer is, so far as reasonably practicable, under a like duty towards any other person, whether at work or not, who may be affected by the work carried out by the employer. Therefore, consideration must be given to contractors, agency or mobile workers, visitors, members of the public and members of the emergency services.

Some duties under COSHH specifically apply to employees.

What kind of substances does COSHH apply to?

COSHH applies to a very wide range of substances and preparations with the potential to cause harm if they are inhaled, ingested or come into contact with or are absorbed through the skin - “substances hazardous to health”.

The  definition of substances hazardous to health is contained in the COSHH Regulation 2(1) and includes:

• substances designated as very toxic, toxic, corrosive, harmful or irritant under product labelling legislation (the CHIP Regulations) - these substances should be clearly identified by the standard orange and black symbols required by the CHIP Regulations;
• substances for which the Health and Safety Commission has approved a workplace exposure limit;
• biological agents (micro-organisms, cell cultures or human endoparasites);
• other dust of any kind, when present at a concentration in air equal to or greater than 10mg per m³ (inhalable dust) or 4mg per m³ (respirable dust) as a time-weighted average over an eight-hour period; and
• any other substance creating a risk to health because of its chemical or toxicological properties and the way it is used or is present at the workplace.

Where other, more specific regulations are in place, exceptions are made from the application of these regulations. For example, lead, asbestos, radioactive materials, explosive or flammable properties of substances and substances at high or low temperatures or high pressure are all covered by their own specific regulations.

Main requirements of COSHH

Regulation 4 requires that certain specified substances are not imported, used at work or supplied during the course of, or for use at, work. Details of these specified substances are contained within Schedule 2 of the Regulations.

Regulation 6 is the “backbone” of COSHH and requires that an assessment of the risk to health from substances hazardous to health is undertaken in order to identify the steps necessary to comply with the regulations. Helpfully, it lists what “considerations” should be taken into account when undertaking the risk assessment.

The risk assessment must be reviewed regularly, and straight away if:

• there is any reason to suspect that the risk assessment is no longer valid;
• there has been a significant change in the work to which the risk assessment relates; or
• the results of any monitoring carried out show it is unnecessary.

Remember that employers who employ five or more employees must record the significant findings of the risk assessment.

The requirement to carry out risk assessments only relates to “workplaces”. Workplace has a very wide definition but notably does not include public roads, other than in certain circumstances where, for example, roadworks are being carried out.

Employers must ensure that whoever carries out the assessment and provides advice on the prevention and control of exposure is competent to do so. This does not necessarily mean that particular qualifications are required.

Regulation 7 requires the prevention or control of exposure to substances hazardous to health. This is basically the requirement to implement the control measures identified in the risk assessment.

Where it is not reasonably practicable to prevent exposure to a substance hazardous to health, the employer must adequately control the exposure by applying protection methods.

• Note: The HSE views the control of exposure using personal protective equipment (PPE) as the last option, where prevention or adequate control by other means is not reasonably practicable.

To further enforce this, under Regulation 8 of COSHH, employers are under a duty to take all reasonable steps to ensure that the control measures are properly used or applied.

Employees are under a duty to make full and proper use of the control measures. They must also take all reasonable steps to ensure it is returned after use to any accommodation provided for it; and if they discover a defect, to report that to their employer straight away.

Regulation 9 requires employers to maintain, examine and test the control measures. More specifically:

• Plant and equipment, including PPE, must be maintained in an efficient state, in efficient working order and in good repair and in clean condition; and
• Systems of work and supervision or any other measure must be reviewed at suitable intervals and revised if necessary.

Regulation 10 requires employers to monitor employees' exposure at the workplace (and that of other persons on the premises where work is being carried out) to substances hazardous to health in order to ensure adequate control or to protect the health of those persons.

The monitoring must take place at regular intervals, and when any change occurs which may affect the exposure. Certain substances require monitoring at specific frequencies which are specified in Schedule 5.

Regulation 11 requires employers to ensure surveillance of employees' health in certain circumstances. The regulations set out exactly when health surveillance should be carried out.

Regulation 12 requires that information, instruction and training is provided for persons who may be exposed to hazardous substances and also those carrying out COSHH assessments. This specifically includes any person who carries out work in connection with the employer's duties and persons on the premises where work is being carried out.

Regulation 13 requires that arrangements to deal with accidents, incidents and emergencies are established where significant risks exist. This extends to employees and persons who are on the premises where work is being carried out. Information on the procedures and systems required must be made available to the relevant accident and emergency services.

Employees also have a duty under this regulation to report straight away to their employer any accident or incident which has or may have resulted in the release of a biological agent which could cause severe human disease.

Offences

Contravention of the provisions of COSHH is a criminal offence. The maximum penalty in the magistrates' court is £5,000. Conviction in the crown court, in respect of more serious offences, carries an unlimited fine.

Further information

For more detailed information in relation to COSHH, please refer to Control of Substances Hazardous to Health (5th Edition) L5 The Control of Substances Hazardous to Health Regulations 2002 (as amended) Approved Code of Practice and Guidance, available from HSE Books.

For more information on COSHH risk assessments refer to COSHH Essentials.

The HSE's publication “A Step by Step Guide to COSHH Assessment” provides more general guidance on the stages in carrying out COSHH risk assessments and is available from HSE Books.

 

Poppy Williams is a solicitor for DLA Piper UK LLP.