Q.01

What is the COSHH ACoP?

The COSHH ACoP is the Health and Safety Executive's Approved Code of Practice for the Control of Substances Hazardous to Health Regulations 2002 (as amended). HSE publishes it as L5, Control of substances hazardous to health: Approved Code of Practice and guidance. The version I found is the sixth edition, published in 2013 [1]. It applies to all substances the Regulations cover [2].

What it contains

  • It sets out the preferred or recommended ways to comply with COSHH. The guidance printed alongside covers topics such as controlling carcinogens and substances that cause occupational asthma, monitoring control measures, and health surveillance [3].
  • It is written for dutyholders and health and safety professionals. Managers and health and safety representatives may also find it useful [4].
  • It takes account of later amending legislation. The list includes the COSHH (Amendment) Regulations 2004 (SI 2004/3386) [5], the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2004 (SI 2004/568) [6] and the Control of Asbestos Regulations 2012 (SI 2012/632) [7].
  • Editions: first published 1995, then 1997, 1999, 2002, 2005 and the sixth edition in 2013 [8].

Legal status (ACoP text vs. guidance)

  • Who approves it: The HSE Board approves ACoPs with the consent of the Secretary of State [9]. The power to do this comes from section 16 of the Health and Safety at Work etc. Act 1974. Section 16 lets HSE approve codes that give practical guidance on the Act's duties and on health and safety regulations, and also lets it revise or withdraw them [10].
  • What following it means: If you follow the Code's advice, you are doing enough to comply with the law on the matters it covers. Other methods are also allowed [11].
  • "Special legal status": If you are prosecuted for breaching health and safety law and it is proved you did not follow the relevant parts of the Code, you have to show you complied in some other way, or the court will find you at fault [12].
  • The guidance parts of L5 have no such status. Following them is not compulsory unless the text says so. If you do follow them, you will normally be doing enough to comply, and inspectors may refer to them [13].

In practice, the COSHH Regulations set the legal duties and the ACoP shows the expected way to meet them. If you depart from the ACoP, the burden of proving compliance in court falls on you.

Approach: I searched the COSHH Regulations 2002 together with the HSE L5 ACoP text, and the Health and Safety at Work etc. Act 1974 for the power to approve codes of practice.

Q.02

What does regulation 7 actually require?

Regulation 7 of COSHH 2002 places one core duty on employers. They must prevent their employees' exposure to substances hazardous to health or, where prevention is not reasonably practicable, adequately control it [14]. The rest of the regulation sets out how to do that: a preference for substitution, a priority order of control measures, extra measures for carcinogens, mutagens and biological agents, and a legal test for when control counts as "adequate". The text below is the revised GB version, in force from 31 December 2020.

1. Prevention first, by substitution (reg 7(1)-(2)) To prevent exposure, the preferred method is substitution. So far as is reasonably practicable, you avoid using the hazardous substance by replacing it with a substance or process that, under its conditions of use, removes or reduces the risk to employees' health [14].

2. If prevention isn't reasonably practicable: control in priority order (reg 7(3)) Control measures must suit the activity and be consistent with the risk assessment. They are listed in this order of priority [14]:

  • (a) suitable work processes, systems and engineering controls, and suitable work equipment and materials;
  • (b) control of exposure at source, including adequate ventilation systems and appropriate organisational measures;
  • (c) suitable PPE, only where adequate control can't be achieved by other means, and always in addition to (a) and (b).

The ACoP confirms that PPE is provided on top of all other control measures. The employer must not charge workers for it (section 9 of the HSW Act) [15].

3. Measures that must always be part of the control package (reg 7(4)) The control measures must include [14]:

  • safe handling, storage and transport at the workplace of the substances and of waste containing them;
  • suitable maintenance procedures;
  • keeping three things to the minimum the work needs: the number of employees exposed, the level and duration of exposure, and the quantity of substance present;
  • control of the working environment, including appropriate general ventilation;
  • appropriate hygiene measures, including adequate washing facilities.

4. Extra measures for carcinogens and mutagens (reg 7(5)) Where exposure can't reasonably be prevented, these apply on top of reg 7(3) [14]:

  • total enclosure of process and handling systems, unless not reasonably practicable;
  • no eating, drinking or smoking in areas that may be contaminated;
  • cleaning floors, walls and other surfaces regularly and whenever necessary;
  • designating potentially contaminated areas and installations, with suitable warning signs;
  • safe storage, handling and disposal, using closed, clearly labelled containers.

According to the ACoP, all of (b)-(e) still apply even where total enclosure under (a) isn't reasonably practicable [16].

5. Extra measures for biological agents (reg 7(6)) These also apply on top of reg 7(3) [14][17]:

  • warning signs, including the biohazard sign in Part IV of Schedule 3;
  • decontamination and disinfection procedures;
  • safe collection, storage and disposal of contaminated waste;
  • testing for agents outside primary physical confinement, where necessary and technically possible;
  • procedures for working with and transporting agents at the workplace;
  • effective vaccines, where appropriate, for employees who are not already immune;
  • hygiene measures, including washing and toilet facilities and, where appropriate, a ban on eating, drinking, smoking and applying cosmetics;
  • for human patients or animals infected (or suspected of being infected) with a Group 3 or 4 agent, the most suitable measures chosen from Part II of Schedule 3.

Schedule 3 applies generally to work with biological agents (reg 7(10)) [17].

6. The test for "adequate" control (reg 7(7) and 7(11)) Control counts as adequate only if all three of these are met [17]:

  • (a) the eight principles of good practice in Schedule 2A are applied;
  • (b) any approved workplace exposure limit (WEL) for the substance is not exceeded;
  • (c) exposure is reduced to as low as reasonably practicable for two groups of substances:
    • those carrying H340, H350 or H350i, or listed in Schedule 1;
    • asthmagens: substances carrying H334, those in section C of HSE's Asthmagen? publication, or any substance the risk assessment shows may cause occupational asthma.

"Adequate" means adequate having regard only to the nature of the substance and the nature and degree of exposure (reg 7(11)) [17].

The Schedule 2A principles are [18]:

  1. minimise emission, release and spread;
  2. consider all routes of exposure (inhalation, skin, ingestion);
  3. use controls proportionate to the health risk;
  4. choose the most effective and reliable controls;
  5. use PPE, combined with other measures, only where other means can't achieve adequate control;
  6. check and review controls regularly;
  7. inform and train employees;
  8. make sure controls don't increase overall risk.

The ACoP stresses that all eight must be applied and that they are not ranked [19]. For a substance with a WEL that is not a carcinogen, mutagen or asthmagen, applying the principles includes cutting exposure in proportion to the health risk and below the WEL [20]. Being under the limit is not enough on its own.

7. PPE standards (reg 7(9) and 7(12)) PPE must be suitable for its purpose and meet any applicable legal requirement, meaning the PPE Regulations 2002 or Regulation (EU) 2016/425. Where no such requirement covers respiratory protective equipment, the RPE must be of a type or standard approved by HSE [17]. Paragraph (8) appears as omitted in the revised text.

Approach: I read the revised text of COSHH 2002 regulation 7 and Schedule 2A from legislation.gov.uk, together with the relevant Approved Code of Practice paragraphs in HSE's L5.

Q.03

What are employees' duties under COSHH?

COSHH 2002 puts only a few duties directly on employees: use the controls provided properly (regulation 8(2)), attend health surveillance when the employer requires it (regulation 11(8)), and report releases of dangerous biological agents (regulation 13(5)). The general duties in sections 7 and 8 of the Health and Safety at Work etc. Act 1974 apply as well.

1. Use the control measures properly (reg 8(2)) Every employee must make full and proper use of any control measure, other thing or facility provided under the Regulations. Where relevant, the employee must also [21]:

  • (a) take all reasonable steps to return it after use to any storage provided for it; and
  • (b) report any defect they find to the employer straight away.

This sits alongside the employer's duty in reg 8(1) to take all reasonable steps to make sure those measures are properly used [21]. The duty covers engineering controls and PPE alike, and also facilities such as washing areas. The ACoP expects employers to make sure employees take off contaminated clothing in the area set aside for it and wash before eating, drinking or smoking [22].

2. Attend health surveillance (reg 11(8)) An employee covered by regulation 11 must attend health surveillance when the employer requires it. This happens during working hours and at the employer's cost. An employee under medical surveillance for a Schedule 6 substance or process must also give the relevant doctor any health information the doctor may reasonably require [23]. The ACoP says employees should be told about this duty to attend on the appointed date and time [24].

If an employee disagrees with a doctor's decision in their health record to suspend them from exposed work, or to put conditions on it, they can apply in writing to HSE for a review within 28 days (reg 11(11)) [25].

3. Report biological agent incidents (reg 13(5)) An employee must report straight away any accident or incident that has or may have released a biological agent that could cause severe human disease. The report goes to the employer, or to another employee with specific responsibility for colleagues' health and safety [26].

4. Self-employed persons (reg 3(2)) A "relevant self-employed person" is treated as both employer and employee, so these duties apply to them too. Regulations 10 (monitoring) and 11 (health surveillance) do not apply to them [27].

General duties under the 1974 Act that also apply

  • Section 7: every employee at work must take reasonable care for their own health and safety and that of others affected by what they do or fail to do. They must also co-operate with the employer as far as needed for the employer to meet its statutory duties, including those under COSHH [28].
  • Section 8: no person may intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare [29].

The other COSHH duties, such as regulation 12 on information, instruction and training, fall on the employer. They support the employee duties above, because employees have to be told what controls to use and what precautions to take (reg 12(2)(c)) [30].

Approach: I read the revised COSHH 2002 text with HSE's L5 ACoP, and sections 7 and 8 of the Health and Safety at Work etc. Act 1974. I found no ACoP paragraph specifically explaining regulation 8(2).

Q.04

Does COSHH cover asbestos or lead?

Not for the most part. COSHH regulation 5(1)(a) says the core duties in regulations 6 to 13 do not apply "where and to the extent that" the Control of Lead at Work Regulations 2002 or the Control of Asbestos Regulations 2012 apply [31]. For work with lead or asbestos that falls under those specific regulations, they govern the risk assessment, control, monitoring and health surveillance, not COSHH.

What regulation 5 actually does

  • The regulation is headed "Application of regulations 6 to 13". The exclusion covers only those regulations: assessment (6), prevention or control (7), use of controls (8), maintenance (9), monitoring (10), health surveillance (11), information and training (12) and emergencies (13) [31].
  • The exclusion is partial. The wording "where and to the extent that" means regulations 6 to 13 still apply to any lead or asbestos exposure that the specific regulations do not cover [31].
  • In the revised text, item (i) of the list is shown as omitted. Only the lead and asbestos regulations remain [31].
  • The L5 ACoP lists the Control of Asbestos Regulations 2012 (SI 2012/632) among the amending legislation it takes into account [7].

The other exclusions in the same regulation Regulations 6 to 13 also do not apply where [31]:

  • a substance is hazardous to health solely because it is radioactive, explosive or flammable, or solely because it is at a high or low temperature or high pressure (reg 5(1)(b));
  • the risk is to a person who is given the substance as part of their medical treatment (reg 5(1)(c)). Reg 5(2) defines medical treatment as medical or dental examination or treatment by, or under the direction of, a registered medical practitioner, a registered dentist or another appropriate practitioner under section 58 of the Medicines Act 1968, and this includes research.

Approach: I read the revised text of COSHH 2002 regulation 5 and searched HSE's L5 ACoP for lead and asbestos. I found no ACoP paragraph explaining how regulation 5 relates to the lead and asbestos regulations, and the Control of Lead at Work Regulations 2002 and Control of Asbestos Regulations 2012 themselves are not in the datasets I searched.

Q.05