Rank: New forum user 
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Dear Members,
can anyone pass an opinion on the following:
We are a medium size manufacturing company of approximately 200 staff based in north Derbyshire. Some manufacturing areas have noise exposure levels of between 80dBA Lepd and 85dBA Lepd - that is to say that under the Noise at Work Regulations 2005 they are recommended to wear hearing protection but it is not mandatory. Our dilemma is thus:
Where the Company recommends hearing protection to an individual in a work area based on the results of an audiometry assessment, (their assigned category being either Category 2 = Warning or Category 3 = Referral) Is the Company liable for other staff in this work area where no individual Audiometry recommendation to wear hearing protection has been made to them?
Secondly:
Where the Company recommends hearing protection by signage and general advice, are we liable if an employee suffers with noise induced hearing loss that hasn't taken up that recommendation over many years?
Your advice would be appreciated.
Thank you,
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Rank: Super forum user 
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Hi Dave
This isn't as simple to answer as you might hope.
the noise at work regs protect an individual and not an area - do your assessments consider individual exposure in all foreseeable circumstances or just the noise levels in the room?
if individual exposure is between 80 and 85dB then current regulations allow for employees only to be advised of the requirement to wear and appropriately trained in the dangers of noise.
if audiometry suggests a problem with one individual I would review the individuals exposure to noise (it may be that they have a loud hobby)
If audiometry suggests a problem with a range of people it may indicate you have missed something.
As for liability - assuming you have complied with the requirements of the Noise at Work Regulations and can fully prove this.... then it's a matter for your insurers / judge?
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Rank: Forum user
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Dave
go and have a read of the recent Supreme Court case of Baker v Quantum Clothing etc. ([2011] UKSC 17). It almost exactly mirrors your situation. I think the critical point is that now there is clear evidence of a low but significant level of risk at much lower levels than the old 90 or even 85 figures.
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Rank: Super forum user 
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Dave, it is a tricky question, hence the lack of responses. Interpreting the law and how we believe it should be implemented is difficult enough, alas pre-empting the courts is even harder.
The company is the duty holder and therefore the onus is on them to ensure that employees are not exposed hazards, wittingly or unwittingly. Where employees may require information, instruction and training, then once again the company are the duty holder. So, noise levels at or above the lower exposure action level (80 dBA) the company should advise employees their right to request hearing protection. If an individual declines to use hearing protection at the lower exposure action level, then it is unlikely they will have any substantive basis for a claim.
Where hearing protection is mandatory as identified at or above the higher exposure action level, the employer is obliged to implement a Hearing Protection Zone. The employer shall ensure, so far as is reasonably practicable, that no employee enters that area unless that employee is wearing personal hearing protectors. Again, the onus is on the employer to enforce the duty which is bestowed upon them.
That is my understanding of the issues you have raised.
Ray
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Rank: Forum user
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I think this calls for reference to Paris v Stepney Borough Council (1950) BC [1951] HL
This landmark case held that the Council owed a greater duty of care to a one-eyed man than to a man with normal sight, hence they should have provided eye protection even though other employees doing this job were not provided with goggles.
This is similar: You have employees who are suffering some form of hearing loss and you therefore owe a greater duty of care to them, so getting them to wear hearing protection in an area where others do not would not be inconsistent or increase liability.
What you might want to do is review audiometry results to see if work in a <85dB(A) environment was actually resulting in further loss or whether this loss had stabilised and was due to historical exposures, in which case you can show that there is no increased duty of care, I guess.
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