Can disclaimers or GP letters be used to not wear hearing protection?
A short answer to this one, no.
Disclaimers and hearing protection
Firstly, the employer has a duty to protect employees where they possibly can and they cannot set this obligation aside. A disclaimer doesn’t free the employer from this obligation to protect the employee if it is within their power to do so.
Also, it is not consider to be an agreement between equal parties and if it was allowed would be a massive open door for abuse. For example, assume it was legal for an employee to sign a disclaimer that they accept any risks and to then not wear any PPE. (Not only hearing protection but as if it was good for ears then it would also be good for boots, eye protection, etc.). How long would it be before more unscrupulous employers were leaning on their employees quietly saying ‘sign this and you can keep your job’?
It is simply not possible to do.
GP letter exempting someone from the need to wear hearing protection
Again, this is not possible.
A GP does not have the power to over-rule the law and does not have the authority to permit an employer to knowingly allow someone to be at risk.
GPs do sometimes think they are omnipotent and all-too-often an individual produces a letter from their doctor saying they do not have to wear hearing protection, however this is but guff in the wind.
Take this scenario - an employee walks into their GP surgery and says ‘my boss says I have to wear hearing protection but it makes me dizzy’, or ‘I find it painful and my ears hurt’. On the basis of absolutely zero knowledge of the workplace, and in 99% of cases zero knowledge of workplace safety law, the doctor quickly bangs out a letter saying that person doesn’t need to wear it.
It has been written with no knowledge of noise risk generally, no knowledge of the noise risk levels in that specific workplace, and no knowledge of what hearing protection is available or possible.
It is like someone going into a GP surgery and saying ‘my back hurts when I climb steps on a footbridge and there are loads of steps up and down where I have to cross the motorway’, so the doctor writes them a letter saying it is therefore OK to just walk across the M1. Clearly nonsense, and saying they do not have to wear hearing protection is no different.
Without hearing protection the employee’s hearing will be damaged and the employer will still be liable for it as they have not met their basic duty for that person. It will be the employer the HSE jump on and the employer who is sued by the employer for hearing loss, not the doctor.
What to do if someone does have a genuine problem with hearing protection
The employer should firstly try different styles, muffs, banded plugs, softer plugs, etc. If none are suitable then the employee should be removed from the noise risk and given a job in a quieter area or use job rotation to minimise noise risks. If this is not possible then the person cannot be allowed to continue working while at risk, so termination of employment is the only option on the basis they are not able to work safely in the area.
