You don't mention why this person needs a hearing test nor why they are reticent.

We had an employee point blank refuse because the booth in the OH providers van was too claustraphobic (proper acoustic chamber) - sent them to the local eyewear/hearing aid specialist

Noise at Work regs-reg 9(5): An employee to whom this regulation applies shall, when required by his employer and at the cost of his employer, present himself during his working hours for such health surveillance procedures as may be required for the purposes of paragraph (1).

“Shall” means must and if they refuse they are in breach of section 7 Health and Safety at Work Act. But do you really want to go down that route. As Kate says, why is the employee so dead set against the testing and why are they refusing to wear hearing protection?   

Hi Sally

In addition to what has already been said what does your risk assesssment say about this individual's personal noise exposure.

You say that the area has intermittent noise above 80 dB(A) but that doesn't mean that this individual is exposed above the "lower exposure limit" of 80 dB(A) as a daily or weekly time weighted average.

So they might not even be in the class of person who would fall within the remit of Regulation 9(5).

Before you consider any action against them I think you need your ducks in a row when it comes to your risk assessment!

I think the discussion is focusing incorrectly on the requirements of NAWR, rather than the (potential) failure to cooperate with their employer. 

If the company have decided that in the area hearing protection is required (based on their own RA and to meet their own moral duty of care) and that all staff should undergo hearing tests, then it doesn't help to quote the Regs and the legal minimum that is required. The company appears to be working to a higher standard, so that intended standard should be achieved. Failure to implement it fully, by making exceptions will undermine the Safety Culture and will have knock-on effects in other areas of H&S compliance. 

By the way, I personally support this more stringent requirement imposed by the company as 80 dBa is not a safe noise level it's just what the HSE could get industry as a whole to finally agree to after years of negotiation. 

Tony

Tony, not convinced by the logic in your second posting today.

Regulation 9(5) says that it has to be read in the context of Regulation 9 as a whole, which essentially means the terms of Regulation 9(1).

9.—(1) If the risk assessment indicates that there is a risk to the health of his employees who are, or are liable to be, exposed to noise, the employer shall ensure that such employees are placed under suitable health surveillance, which shall include testing of their hearing.

(2) The employer s...

(3) The employer.......

(4) Where, as......

(5) An employee to whom this regulation applies shall, when required by his employer and at the cost of his employer, present himself during his working hours for such health surveillance procedures as may be required for the purposes of paragraph (1).

Now I fully accept (as you note in your earlier posting) that the employer is entitled to assess that an exposure below 80dB(A) presents a risk to health and go for a response that goes beyond the legal minimum, but in the absence of a clear assessment of what this person's assessed exposure is, should the employer just go for a blanket approach that includes mandatory hearing tests (at the employer's expense) for EVERYBODY including the office staff  INCLUDING the Directors?

If the answer to that is YES, then that is for the contract of employment to confirm. Otherwise the Employment Tribunal is a substantial risk.

Originally Posted by: antbruce001

I think the discussion is focusing incorrectly on the requirements of NAWR, rather than the (potential) failure to cooperate with their employer.

Any duty to co-operate is tempered by certain challenges as to the legality of the request, its proportionallity and ultimately its suitability.

"You must have a hearing test because we say so" is not a cooperative approach.

"You must wear ear plugs in this area" is not a cooperative approach.

Gone are the initial days of Hearing Conservation when one high reading would see whole swathes of a factory subject to blanket policy for mandatory protection and testing.

Cooperation sees the monitoring of individuals to assess their average and peak exposures, agreeing suitable risk control strategy and where necessary implementing occupational monitoring to ensure the controls are being effective.

Tony 

As you say these and other forums have regularly discussed enforcing X, Y and Z and I did ponder throwing in mandatory Drug and Alcohol testing into this thread a couple of postings ago.

I still think you are taking a somewhat dictatorial [or perhaps, Behavioral Safety] employer type approach.

You say that this person is refusing to wear hearing protection "as required".

But do you mean that the hearing protection is "required" by law [which it probably isn't] or "required" by the employer?

The OP comments:

sometimes the work area can be noisy (over 80dba), although not consistently and also he does not want to wear hearing protection even intermittently

This sort of statement says to me that the employer has probably NOT done an adequate assessment of the noise exposure of this individual and those around them!

It also tells me that the exposure might be above the "lower exposure action value" but that it is quite likely not to be at that level.

Only the most ardent BS Golden Rules practitioner would start with blanket requirements for medical surveillance and possibly PPE before doing the basics of doing what the primary duty holder should have done.

"He" might have all sorts of reasons NOT to want to wear hearing protection.

...and as every OSH practitioner is taught, PPE is the "last line of defence".

However, even the HSE seems to have suddenly forgotten the General Principles of Prevention aka Hierarchy of Control.

But, perhaps the issue of the moment is the use of RPE in any mechanical processing operation. Until recently HSE would have advocated avoidance and technical control measures as the starting point.

Now, it is insisting that RPE be used for ANY woodcutting activity whatever the type of wood and whatever the exposure can be expected to be with LEV and other controls in place.

At some point, HSE is going to lose in an Employment Tribunal when a duty holder appeals a Notice or in the Courts when the duty holder pleads not guilty and elects to go to trial.

For now HSE seems to be getting away with an ever more rigid approach, largely because it rarely targets duty holders other than the small businesses who can rarely afford to challenge the regulator, but also by maintaining reliance for HSE guidance on the judgment on what is reasonably practicable in Edwards v National Coal Board, rather than the less onerous interpretation in the later case of Marshall v Gotham, made in a higher Court [House of Lords].

How many users of these IOSH Forums have heard of Marshall v Gotham? - I guess not that many. If those using these Forums are unlikely to be aware of this key case, how many small businesses will be aware of its implications?

I just wonder if the employee and others listen to music while at work and use Ear Buds ?