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 on agency staff.

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. The host employer has no obligation to provide screening hearing testing for agency staff 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 450 agency staff present over the course of a year. If they tried to provide hearing tests for all of them 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.

Possible GDPR issues

If the host employer chooses to test agency staff as well, be aware it does potentially introduce a complication under GDPR. The ‘legitimate interest’ in the employer managing the hearing tests for their personnel arises from the legislative requirement to do the hearing tests on their employees. For Agency staff though, as the Agency is the employer rather than the host company then that ‘legitimate interest’ clause for doing the testing is 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 specific noise risks present and the need for the hearing protection.