Responsibility for Agency staff
One of the main outcomes from a noise assessment is often a need for health surveillance - hearing testing - and that applies to everyone regularly exposed to levels over 85 dB(A). Where it can get a little more complicated is agency staff, especially who is responsible for the hearing tests.
Extract from L108
People who are not your employees
Sometimes your activities may cause employees of other employers to be exposed to noise, e.g. where contractors take noisy tools into quiet premises to do their job, or they go to do a quiet job in premises that are already noisy.
Regulation 3(2) places duties on all the employers involved and each will have a responsibility:
(a) to their own employees; and
(b) so far as is reasonably practicable, to any other person at work who is affected by the work they do.
The HSE are actually quite clear on it though. As the host employer you have no obligation to provide screening hearing testing and the legal responsibility for them rests with the agency person’s employer, the agency themselves.
Testing agency staff can not only be outside the employer’s responsibility in the Noise Regs, it can also be hellishly expensive. I came across one employer with about 25 actually staff, but who had over 650 agency staff present over the course of a year. If they tried to provide hearing tests for them all that was a massive increase in complexity and cost.
In a lot of cases, the Agency is contracted to provide X number of personnel, but those personnel may be transitory and only stay for a few weeks or months, or even days.
if the host employer chooses to test agency staff as well be aware it does potentially introduce a complication under GDPR – normally the ‘legitimate interest’ in the personal data for the employer arises from the legislative requirement to do the hearing tests on their employees, but as the Agency is the employer rather than Fischbach then that ‘legitimate interest’ clause for doing the testing is then taken away.
My recommendation is that the contract with the Agency specifies that the Agency will provide staff who are subject to regular hearing health surveillance.
Remember, the host employer still needs to do the actual noise assessment for the site, provide hearing protection and train the Agency staff on the risks present and the need for the hearing protection.
