Matt, it appears to me to be that this is not now a "H&S problem" but one of management. The employee's supervisor/manager/director should be deasling with the issue up to and including the full disciplinary procedures.

 As you say you have a blanket mandatory hearing protection policy, and this means that those who are not exposed to dangerous noise levels need to wear hearing protection all the time they are in the building, regardless of whether they need them or not, and to me this is where the problem stems.

If he is in that building all day, he has to wear protection regardless of whether he needs it or not. Yes he is being difficult - but why? This is where IMO Health & Safety gets its reputation tarnished. Rather than assessing the risks and coming up with something that is reasonable and protects workers we just make everyone have to wear something they would rather not, because it is easier.

Thanks for the responses and I agree this is a HR issue.  I just hate having to escalate stuff as I feel I have failed in not solving it / changing people's behaviour.

WatsonD; I agree; i do not like blanket rules in general however in this case the decision taken was correct and the guy is subjected to noise levels above 87dBa when working in the area for extended periods of time.

I'm curious as to why the answer to the issue was PPE in the first place.

Now I know the sort of environment, as I did my apprenticeship in automotive BIW, & I know metalworking factories well.

What heppened to consideration of all of the other options in the "hierarchy of control" that were ignored in favour of transferring the onus from the employer to the employee, and utilisng a control which always fails to danger, and is lsted as a last resort?

I agree with Paul S and all the other comments.

PPE is the last thing in all the control measures.

Metal punches along with most metal working machines can be drastically improved and refined with many simple and complicated options to significantly reduce the noise, vibration, smells and fumes that eminate in factories.

At it's simplest, fitting rubber pads to the floor fixings of the presses will help absorb a lot of the problems.  Then other options have the machines coated with rubber on the drop feeds, putting simple things like thick carpet into the metal drop boxes (especially in rebar working).

More complicated things are available such as sound boxes and the like, talk to the manufacturers of the equipment - you are not the only one to have these issues.  

Ask the workforce operators. 

Originally Posted by: lisar

I had a similar issue regarding safety footwear. Our insurance company said that there had a been a test case regarding PPE as a company dismissed an employee on the grounds he couldnt wear protective equipment and was therefor not suitable for the role following on from a risk assessment.

He took the company to an employment tribunal and original won. The company fought against this and it was decided in the companys favour as apparantly Health & Safety over rules HR in such circumstances.

Do you know the name of the case?

I have a tendency towards eczema in my ears, made worse by headphones for the iPod (which I don't wear any more) and even the big earphones cause my ears to overheat and come up in eczema.  It's a very real problem that cannot be avoided by providing moulded earplugs even if they are very expensive because it is the sweat that causes the eczema.

Eczema in the ears, if properly taken care of and allowed to heal does not cause further problems, however, if the person is required to wear ear defenders every day, day in day out, then the eczema will exacerbate and the employee will start to get ear infections and they will not be able to wear ear defenders until the ear infection is cleared up so they will be off work if ear defenders are mandatory.  Now, although he has a pre-existing condition, this would be an illness arising from or out of connection with work and would probably be RIDDOR reportable. 

Do you really want to go down that route?  Sometimes things are not as clear cut as they seem and you should be looking at reducing the noise levels with engineering methods before putting a blanket "ear defenders are mandatory" dictate out.

I would start with occupational health and see if he does have a problem - if he does then you need to think again rather than escalate because he's being "difficult".

I am aware of at least one manufacturer that went down the route of combining ear muffs and eye protection without the need for a helmet to connect the two

We also bought hygiene pads (not kits) from the same supplier a soft fabric that stuck to the rim of the muff to eliminate the problems of skin contact with plastic and sweating

Originally Posted by: WatsonD

Originally Posted by: lisar

I had a similar issue regarding safety footwear. Our insurance company said that there had a been a test case regarding PPE as a company dismissed an employee on the grounds he couldnt wear protective equipment and was therefor not suitable for the role following on from a risk assessment.

He took the company to an employment tribunal and original won. The company fought against this and it was decided in the companys favour as apparantly Health & Safety over rules HR in such circumstances.

Do you know the name of the case?

I think this is the one you're looking for: http://www.personneltoday.com/hr/lane-group-plc-and-another-v-farmiloe-eat-24-november-2003/

Matt,

Sounds as if this individual just wants to continue to push the boundaries and any suggestions you recommend will just throw a curve ball. Understand you have reached the end of your patients and expecting another excuse.

A bit of a stupid question, have you sat this person down and reviewed the situation together, along with the obvious consequences. Just by the description in your thread tells me that this individual is self-conscious about his health.

Is it just this person, who is pushing against your recommendations or are there others? It sounds as if you need to think outside the box and undertake a bit of behavioural safety approach. This individual seems a bit complacent, however on the other hand is making points of rejection on health issues and sounds as if they just do not like change.

The individual may seem a pain in the backside. This attitude is seen quite often in the construction industry, actually on regular basis. Sorry, but persistence is a key factor and maybe sitting down and working together, there is a solution to the problem. Explain the health risks in-depth (demonstrations i.e. loss of eye sight, loss of hearing via video, personnel experiences etc).

Give him choice of PPE – Visor, Helmet with Ear Defenders attached, specially made ear moulds, eye protection etc

Think jumping straight for the jugular with HR will cause more of a headache, bring together the safety committee and get the buy-in of the workers and not only this individual. As it sounds as if this individual is making a point and others have not 100% bought in to it, if 1 – 2 continue to forget to wear the appropriate PPE.    

From the HSE website:

Occupational diseases

Employers and self-employed people must report diagnoses of certain occupational diseases, where these are likely to have been caused or made worse by their work: These diseases include (regulations 8 and 9):

• carpal tunnel syndrome;
• severe cramp of the hand or forearm;
• occupational dermatitis;
• hand-arm vibration syndrome;
• occupational asthma;
• tendonitis or tenosynovitis of the hand or forearm;
• any occupational cancer;
• any disease attributed to an occupational exposure to a biological agent.

I think that is quite clear.  It says "when an occupational disease has been made worse by the work".  If someone has an ear dermatitis problem and you force them to wear ear plugs which make the dermatitis worse and they go off for over 7 days with an ear infection then according to the above, it is RIDDOR reportable.

It's not a can of worms I would open without a trip to occupational health for your employee.

Originally Posted by: achrn

Originally Posted by: Matt34

there are 60+ employees in the building and apart from the odd 1 or 2 who forget to put them in; i have 1 employee who is making every excuse he can think of to put up barriers.  Refused to wear everyday ear plugs "as they will open his ear canals meaning he will get water in his ears while swimming", refused to wear over ear defenders because "they caused ear sweating and infections", purchased him specifically moulded ear plugs and he wont wear them "because they cause eczema".  Occupational Health share my opinion that he is being awkward, but have offered no advice past providing him with information on protecting his hearing.

FWIW, I have medical advice from my GP not to wear ear-plugs (other than the silicone / wax ones that cap over the end of the ear canal, but they have an inadequate SNr for much in a PPE role).  Apparently I have existing damage to the ear canal.  So I refuse to wear ear plugs.  It's not necessarily the case that someone refusing to wear ear plugs is doing so only out of awkward bloody-mindedness.

Where I need hearing protection I wear over-ear ear-defenders, but they are a pain with eye protection, and even more so with a hard-hat.  Hat mounted defenders work for the ears, but do make glasses uncomfortable (and I suspect the performance of the ear defenders is severely degraded by having them over glasses arms).  A fully hat-mounted system (hat, defenders, visor) is heavy and awkward when everyone else is just wearing a lightweight pair of safety glasses and an ordinary helmet.

Yes the employee has a duty to cooperate, but the employer's duty extends beyond simply instructing everyone to wear ear-plugs all the time.

Always have the conversation - there may be a genuine reason for objection to ear plugs, temporary or otherwise.

As has been said the blanket approach may not reflect actual risk, and trying to enforce PPE where it is simply not required will only damage the reputation and image of the H&S department, making your life harder going forward.

Morning Jon

I think that the Farmiloe case could easily have gone the other way in the Appeal.

Down to the quality of both plaintiff's and defendants' cases.

So, the duty on the employer (and by implication on 2nd defendant) was to achieve what was reasonably practicable.

....and a blanket decision on the need for hard hats and safety footwear MAY have been well past the balancing point, and even that is difficult to determine in law as it would depend on which authoritative judgment was used to assist with coming to a decision, in particular Edwards v National Coal Board 1949 or the less well known case of Marshall v Gotham 1954 in a higher Courts

Both are consistent on the need to compare Cost (Time, Money and Effort) against Risk - or perhaps more accurately Reduction in Risk, when considering each possible mitigation individually and collectively.

One element of "Cost" would be that a mitigation would be contrary to the employer's duty to apply "reaosnable adjustments" for someone with a disability (or whatever nature).

Then the plaintiff MIGHT have been able to demonstrate that the risk was so low as to not justify mandatory PPE or that there were other reasonably practicable precautions the employer COULD have taken to reduce the risks to a level where PPE was no longer reasonably practicable.

However, to make such a coherent case, the plaintiff would probably need both a top legal team AND a very convincing Expert Witness. The all too typical No Win, No Fee soliciitor just wouldn't be likely to win if the defendants' case was reasonably solid.