What are the Regulations around COSHH?

Hazardous substances are present in most, if not all, workplaces. They can potentially cause harm, such as ill health (short- and long-term) and environmental damage. Some are also classed as dangerous substances, as they can cause fire and even explosions if not properly controlled.

According to the Health and Safety Executive (HSE), thousands of workers are made ill by hazardous substances every year. Workers contract lung and skin diseases, e.g. asthma, cancer and dermatitis, which cost industry, society and individuals millions of pounds each year.

The latest health and safety statistics estimate there are:

• 13,000 deaths each year linked to past exposure at work, primarily to chemicals or dust.
• 17,000 new cases of breathing or lung problems caused or made worse by work each year on average over the last three years.
• 2,446 mesothelioma deaths in 2018, with a similar number of lung cancer deaths linked to past exposures to asbestos.
• 7,000 new cases of self-reported skin problems each year that were caused or made worse by work.

These statistics highlight that exposure to hazardous substances can cause debilitating ill health and, in some cases, can be fatal. This article will look at the regulations surrounding hazardous substances, including COSHH, in further detail.

What is COSHH?

COSHH stands for the Control Of Substances Hazardous to Health. It refers to a regulation introduced to protect workers and others from hazardous substances in the workplace. This Regulation is known as the Control of Substances Hazardous to Health Regulations 2002, the COSHH Regulations or simply COSHH.

The COSHH Approved Code of Practice (ACOP) defines a substance as:

So, what substances can be hazardous and what is covered under the COSHH Regulations?

COSHH covers most hazardous substances, such as:

• Chemicals.
• Products containing chemicals.
• Fumes.
• Dusts.
• Vapours.
• Mists.
• Nanotechnology.
• Gases and asphyxiating gases.
• Biological agents (germs).
• Disease-causing germs.

The COSHH ACOP expands on this and includes:

• Any substance classed as hazardous under the Classification, Labelling and Packaging (CLP) Regulation, e.g. toxic, harmful, corrosive and irritant.
• Any substance with an approved workplace exposure limit (WEL).
• Any biological agent related to work.
• Inhalable and respirable dust in certain quantities, as specified in the regulations.
• Any other substance that is not included in the above but could constitute a health risk.

For hazardous substances to cause ill health, they must come into contact with the human body. There are several ways they can enter the body, and these are called routes of entry.

Routes of entry include:

• Skin and eye contact.
• Swallowing (ingestion).
• Breathing in (inhalation).
• Skin injections or punctures.

How a substance enters the body depends on its form, e.g. dust, fume, liquid, solid, mist, gas and vapour.

Hazardous substances can cause many ill-health effects, and these can be acute or chronic. Acute ill-health effects occur soon after exposure, e.g. irritating chemicals can cause minor irritation and redness to the eyes.

Chronic ill-health effects happen after prolonged exposure to low concentrations of a substance and are usually irreversible and disabling, e.g. being exposed to a carcinogenic substance frequently can increase the risk of cancer.

Where are hazardous substances a risk?

Most workplaces will have hazardous substances, even those deemed to be lower risk, such as offices and shops. If a chemical has a hazard pictogram on the packaging/label, then it has the potential to cause harm to workers and others in the vicinity. Hazardous substances can also be created by certain work activities, e.g. cutting wood.

There are some industries/jobs that are more likely to be exposed to hazardous substances due to the nature of the work carried out.

For example:

• Woodworkers and carpenters – Wood dust.
• Construction workers, plasterers and builders – Concrete, brick and plaster dust, asbestos, lead, hot work fumes, wet cement and chemicals, e.g. paints, solvents, fuels, oils and greases.
• Animal workers – Animal dander, animal fur, faeces, saliva, veterinary drugs, cleaning chemicals and biological agents.
• Hairdressers and beauticians – Bleaching agents and cleaning chemicals.
• Solderers and welders – Soldering and welding fumes.
• Metalworkers – Metalworking fluids.
• Paint sprayers – Isocyanates from the paint spraying.
• Caterers, bakers, food manufacturers – Flour dust and enzymes.
• Healthcare workers and dentists – Latex (proteins), biological agents, drugs, cleaning chemicals and surgical smoke.
• Agricultural workers – Agricultural chemicals and fertilisers, dust, grains, biological agents, animal dander, animal faeces and soils.
• Mechanics – Fuels, oils, greases, paint spraying, welding fumes, exhaust emissions and vehicle cleaning products.
• Cleaners – Cleaning chemicals, e.g. bleaches, descalers, cleaning sprays, and biological agents.

If there is a risk of exposure to hazardous substances, the COSHH Regulations will apply along with other applicable legislation.

The regulations around COSHH

The COSHH Regulations are the main regulations surrounding hazardous substances and will cover the majority found in and around workplaces. However, it is important to note that the COSHH Regulations do not include all hazardous substances.

Some have their own specific set of regulations, such as:

• Asbestos
  – The Control of Asbestos Regulations (CAR) 2012.
• Lead
  –The Control of Lead at Work (CLAW) Regulations 2002.
• Radioactive substances
  –The Ionising Radiations Regulations 2017 (IRR17).
  –The Control of Electromagnetic Fields at Work Regulations 2016.
  –The Control of Artificial Optical Radiation at Work Regulations 2010.

Employers and other duty holders must comply with the above legislation for these specific hazardous substances if they are a risk in their workplace.

The COSHH Regulations

Under the COSHH Regulations, employers have a duty to prevent or reduce workers’ exposure to hazardous substances. This also applies to self-employed workers where their use of hazardous substances could harm others.

To comply with the COSHH Regulations, employers should:

• Not use prohibited substances unless required for certain purposes.
• Assess the risks from hazardous substances to employees and others before work. This is known as a COSHH Assessment.
• Look at the precautions required and prevent exposure where possible. If prevention is not feasible, control exposure by applying the principles of good control practice.
• Make sure that control measures are used, maintained, tested and examined.
• Monitor exposure where hazardous substances are in use.
• Provide health surveillance for those who are at risk of exposure.
• Provide training, information, instruction, and supervision to those who will come into contact with hazardous substances.
• Have arrangements to deal with accidents, incidents and emergencies involving hazardous substances.

The COSHH Regulations apply in Great Britain (England, Wales, and Scotland). In Northern Ireland, the Regulations are the Control of Substances Hazardous to Health Regulations (Northern Ireland) 2003.

The COSHH Approved Code of Practice (ACOP) provides guidance on how duty holders can meet the requirements of the COSHH Regulations. As ACOPs are legal series documents, duty holders must comply with them; unless they can provide evidence that they have met the requirements of COSHH in another way. It is always advisable to follow the ACOP.

Other relevant laws

Exposure to hazardous substances will also come under the Health and Safety at Work, etc. Act (HSWA) 1974. Employers must have arrangements to ensure that when substances are used, handled, stored, and transported, they are safe and do not create risks to people’s health. The working environment should also be safe and healthy, e.g. no dusts.

On construction sites, the Construction (Design and Management) (CDM) Regulations 2015 will apply. It requires duty holders to include hazardous substances in the health and safety arrangements in the construction phase plan.

There should be specific measures for “work which puts workers at risk from chemical or biological substances constituting a particular danger to the safety or health of workers or involving a legal requirement for health monitoring.”

In addition to general health and safety legislation, the CDM Regulations and the COSHH Regulations, there are two other relevant pieces of legislation, which are:

• The Classification, Labelling and Packaging (CLP) Regulation.
  – An EU regulation that covers the classification, labelling and packaging of substances and mixtures.
  – After Brexit, the EU CLP Regulation (as amended) was retained in GB law and is now known as the GB CLP Regulation.
  – GB CLP applies to GB-based manufacturers, importers, downstream users and distributors supplying the GB market. If companies supply to the EU market, they will need to also adopt EU CLP.
  – GB CLP requires duty holders to classify, label and package substances and mixtures in accordance with the Regulation.
  – Like EU CLP, GB CLP adopts the United Nations’ Globally Harmonised System (GHS) of the classification and labelling of chemicals.
• The Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation.
  – REACH requires chemicals to be registered, evaluated, and authorised. It can also restrict substances.
  – EU REACH Regulation has been brought into UK law and is now known as UK REACH.
  – UK REACH requires companies to identify and manage the risks presented by substances they manufacture and market in GB.
  – REACH applies to the majority of chemical substances.
  – REACH is a complex and in-depth topic, and the HSE has a dedicated webpage, which can be accessed.

As the UK has now left the EU, there have been some 2021 changes to COSHH to CLP and REACH you can access them in our knowledge base.

Who is responsible for health and safety?

When people ask who is responsible for health and safety, the answer is usually “everyone”. This is true to an extent.

However, it is important to recognise that some have more duties than others in the workplace. By saying that “everyone is responsible” is like saying that everyone has the same accountability, which is not the case. So, while everyone has responsibilities for health and safety, there will be differences depending on who the duty holder is.

Who is overall responsible for health and safety will depend on the type of workplace and activities it is important to be clear on what responsibilities duty holders have and what they need to do to comply with the law and keep people safe and healthy.

Employer responsibilities

Employers are overall responsible for the health, safety, and welfare of all their employees while at work. They also have responsibilities to non-employees, such as contractors, visitors, and members of the public.

This extends to having overall responsibility for the control of hazardous substances in the workplace under COSHH and associated regulations.

The self-employed responsibilities

Under COSHH, self-employed persons have to comply with the same duties as employers and employees. If a self-employed person employs employees and controls their work, all parts of the COSHH Regulations apply.

If a self-employed person is not an employer but takes hazardous substances on to someone else’s premises, the COSHH Regulations will apply. However, they will be exempt from regulation 10 (workplace monitoring) and regulation 11 (health surveillance).

Those who are self-employed also have duties under HSWA if they carry out ‘an undertaking of a prescribed description’. This will apply where a self-employed worker’s activities pose a risk to others, e.g. use or creation of hazardous substances.

Construction sites

On construction sites, employers will still be responsible for their employees. However, clients have overall responsibility for health and safety on construction projects under the CDM Regulations.

They must ensure that construction sites are kept safe and do not put people’s health at risk (so far as is reasonably practicable). Designers, principal designers, principal contractors, and contractors will also have responsibilities regarding hazardous substances.

Employee responsibilities

Employees have general legal duties under the Health and Safety at Work etc. Act 1974 (HSWA) and the Management of Health and Safety at Work Regulations (MHSWR) 1999.

Under these two pieces of legislation, employees have a duty to:

• Take reasonable care of themselves and others who may be affected by their acts and/or omissions.
• Cooperate with their employer so that they can comply with health and safety legislation.
• Use any substance in accordance with training and instruction received.
• Notify their employer, or an employee with specific health and safety responsibilities, of any situation that poses a serious and immediate danger.
• Notify their employer of any failings in their health and safety arrangements.

They also have duties under the COSHH Regulations, which are:

• They must use any control measures fully and properly where provided.
• They have a duty to report the release of a biological agent, which could cause severe disease to humans.
• They must be available for health surveillance and medical surveillance during working hours at the employer’s request.

Others

Other duty holders will also have responsibilities for health and safety and reducing the risks associated with hazardous substances, e.g. :

• Those in control of premises (who are not employers).
• Designers.
• Manufacturers.
• Suppliers.
• Distributors.
• Importers.

For example, under HSWA, designers, manufacturers, suppliers and importers of substances must ensure that they are safe and without risks to health when used, handled, processed, stored or transported by a person at work. They should test and examine substances where necessary and provide information, e.g. safety data sheets (SDSs).

Non-compliance

If duty holders do not comply with their legal health and safety responsibilities, e.g. not complying with the COSHH Regulations, it can mean:

• Enforcement notices – The HSE can issue enforcement notices, such as improvement and prohibition. These notices are in the public domain, and the HSE charges a fee under their Fee for Intervention (FFI) scheme.
• Prosecution – The HSE can start prosecution proceedings for serious or repeated breaches of the law, including where duty holders have not complied with enforcement notices. Prosecution can result in imprisonment and/or a fine.
• Compensation claims – Workers who become ill due to being exposed to hazardous substances can claim compensation.

Failing to comply with the law can be very costly for duty holders, and for smaller businesses, it may even result in closure if financial penalties are high.

If employees do not comply, they are not only harming their employer but also their own health. If they become chronically ill, it can have a knock-on effect on their families and even society if they can no longer work due to being made ill by hazardous substance exposure.

Summary

Hazardous substances can have short-term and long-term effects on workers and others who are exposed. The ill-health effects can be wide-ranging and depend on the type of substance, its form, and its hazardous nature.

For most hazardous substances, workers are likely to suffer from ill health when exposed to them over time. For example, a construction worker regularly exposed to concrete dust may develop a lung disease known as silicosis, which can be severely disabling and fatal.

Health and safety legislation, including the COSHH Regulations, CLP, and REACH, aim to protect workers and others from the harm that hazardous substances can cause.

To prevent and reduce the risk of harm, duty holders must comply with applicable laws. If they do not, it can cause ill health to workers, which could result in enforcement action, compensation claims and associated financial implications. Remember, a healthy workforce = healthy profits.