HAVS inspection and enforcement guidance
21 April 2021
HAVE YOU ever wondered what would happen if a Health and Safety Executive (HSE) Inspector turned up at your site to look at how you manage hand-arm vibration?
HSE recently revised its internal guidance for inspectors on hand-arm vibration (formerly called the Topic Inspection Pack). The revised Operational Guidance ‘Hand-arm vibration Inspection and Enforcement Guidance’ is intended for use by Inspectors or visiting officers when inspecting work activities involving risks from exposure to hand-arm vibration (HAV), enforcing the Control of Vibration at Work Regulations 2005 (the Vibration Regulations) and investigating cases of hand-arm vibration syndrome (HAVS) and carpal tunnel syndrome (CTS) reported through the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).
So if your employees are exposed to hand-arm vibration, and especially if you have recently reported a case of HAVS or CTS, you might want to check that you are complying with the Vibration Regulations, what questions you are likely to be asked, and how HSE inspectors are likely to go about assessing your management of risks from hand-arm vibration.
In this article, Sue Hewitt and Dr Chris Nelson from Finch Consulting discuss a few points in the guidance that are worth being aware of when it comes to managing hand-arm vibration.
How much effort should be put into a vibration exposure assessment?
In relation to vibration exposure assessment, the Operational Guidance states:
“HSE does not expect employers to make a precise or detailed assessment of exposure beyond what is required to identify the need for action.”
In other words, you should not usually need to put a great deal of time and effort into trying to quantify the daily vibration exposures of your employees. It’s important to understand that exposures will always vary from day to day and that in any case there is a large degree of uncertainty attached to any assessment of daily vibration exposure. The important thing is to establish whether the exposure is sufficient to cause concern, and in particular, whether it’s likely to reach or exceed the Exposure Action Value (EAV) or Exposure Limit Value (ELV). If it’s not easy to decide whether, for example, the EAV is exceeded, then it’s probably best to simply assume that it is, record this decision, and then concentrate your efforts and resources on identifying and prioritising the necessary actions to control the risk.
The HSE provides freely available information to help with a vibration exposure assessment, so that you do not have to look too far, or use up too much resource, to get started. There is a table of typical vibration magnitudes of some common machines. There is also a calculator which will calculate the daily vibration exposure for your combination of vibration magnitudes and exposure times. Your vibration exposure assessments only have to be sufficient to identify where there are high daily exposures and to compare the exposures of your workers with the EAV and ELV, so that you can identify and then prioritise the necessary actions.
What might lead an Inspector to decide to take enforcement action?
The Operational Guidance recommends that Inspectors should ‘take action’ when HAV is identified as a “matter of evident concern” during inspections. A matter of evident concern for HAV is defined in the guidance as where:
Exposure is likely to be at or above the EAV
There is evidence of vibration-related ill health (e.g., HAVS, CTS) not being properly managed;
Employees report tingling when using vibrating tools, which persists for 20 minutes or more afterwards.
The section on enforcement advises that the issuing of Improvement Notices will usually be appropriate where:
The EAV is likely to be exceeded regularly and frequently; and
Exposure is not as low as is reasonably practicable (ALARP)
The remaining risk is not appropriately managed.
Regular and frequent’ is defined in the guidance as:
“repeated several days each week over months and years”.
Failure to appropriately manage the remaining risk may include failure to operate an adequate health surveillance programme and failure to provide appropriate information, instruction and training.
In cases of very high vibration exposure (above the ELV), the inspector may also decide to issue a Prohibition Notice.
In relation to the potential for prosecution, the guidance states:
“Prosecution should be proposed where serious breaches of the Vibration Regulations are found, and strategic and dutyholder factors indicate such action would meet the principles and expectations of the HSE enforcement policy statement.”
HSE’s enforcement policy states that all enforcement action should be proportionate to the health and safety risks and to the seriousness of any breach of law.
Exposures above the Exposure Action Value
In our experience, there seems to be a common misconception amongst employers that vibration exposure has to be below the EAV, and that if it is, then nothing more needs to be done. However, this is not correct.
Daily vibration exposures do not have to be below the EAV, provided it can be shown that they are ALARP and appropriate health surveillance is in place. However, if there is a reasonably practicable control measure available that has not been implemented, and exposures are likely to be at or above the EAV, then you are legally required to take further action to reduce the exposures to ALARP. Whatever the exposure level, Reg 6(1) requires you to ensure that risks from vibration are eliminated, or reduced to ALARP. However, if the daily exposure is below the EAV, in the range where the HSE considers the risk of a serious health effect to be remote, it is likely that only straightforward and low-cost control action would be considered reasonably practicable.
Some employers try to prevent exposures from exceeding a certain limit, for example, using electronic monitoring devices or daily timesheet records. The chosen limit might be the EAV, or sometimes a different exposure value is chosen, such as the ELV. Some workers may be given lower individual daily exposure limits if they have HAVS. However, a question that could legitimately be asked of this approach is: ‘What is the employee instructed to do if the limit is reached?’ If this reveals that there are further reasonably practicable steps the employer could take to reduce exposures but has not taken, then the employer has demonstrated that it is not fully compliant with the requirements of the Regulations.
In any case, a policy of working up to a daily limit, rather than down to ALARP by managing the allocation of work, is not compliant with the Vibration Regulations.
If an inspector does find that there are exposures likely to reach or exceed the EAV then the guidance directs the Inspector to “give priority to preventing risk (i.e. elimination and control)”. It also advises an Inspector to “check that measures are adapted to prevent risk to workers susceptible to HAV injury, for example, to prevent progression of symptoms in workers with diagnosed HAVS/CTS”.
In our experience, another common failing in the management of HAVS can occur when dealing with those who have a diagnosis of HAVS at an early stage and who are retained in the same or similar work, albeit with increased frequency of health surveillance. Frequently the medical opinion recommends a daily exposure limit in terms of HSE points which is below the EAV, but without any knowledge of the individual’s previous level of exposure. For example, maximum daily exposure of 80 points may be recommended when it was previously set at 100 points (the EAV). This is then implemented simply by declaring it to be that individual’s new exposure limit. However, if this does not bring about a significant reduction in that individual’s typical exposure (their average daily exposure might previously, for example, have been 50 points), or if there are no real changes to the individual’s day to day work pattern, it is unlikely to have any impact on exposure and may not prevent the progression of the disease. It should be recognised that, although the risk is relatively low for most healthy people, exposures below the EAV are not considered safe and it is possible for susceptible individuals to develop symptoms or for symptoms to progress even at lower levels.
The level of risk and benchmarks
The Operational Guidance includes a ‘Risk Matrix’ for HAVS which the HSE uses in combination with its Enforcement Management Model (EMM) to demonstrate that there is an extreme risk gap for vibration exposure above the EAV and a substantial risk gap where exposures are below the EAV but above 1 m/s2 A(8).
The guidance says that the inspection should focus on:
‘high-risk activities with the potential for high HAV exposures, i.e. exposures likely to be above the EAV where inadequate controls can result in an extreme risk gap under the Enforcement Management Model.’
The guidance also states that the ‘benchmark’ for decisions on enforcement is set at:
“a ‘nil/negligible’ risk of a serious health effect”
For HAVS, a serious health effect is defined as reaching a disabling severity (i.e. stage 2 late or stage 3) before retirement age. Compliance with this benchmark standard requires that:
Exposure is likely to be below the EAV and there is no evidence of HAVS or where HAVS is present, health surveillance shows it is not progressive;
The risk/exposure is ALARP (but above the EAV) and there is adequate health surveillance, with procedures in place to prevent any cases of HAVS from advancing, particularly to more disabling severity (e.g. stage 2 late or stage 3 on the Stockholm Scale, see L140).
If the HSE follows its own guidance, a visiting officer or inspector should not be overly concerned with the extent of the risk assessment, provided that it is suitable and sufficient (as discussed above) and that it demonstrates that exposures are below the EAV and/or that any risks are reduced to ALARP.
Appendix 1 of the guidance explains how exposure will be determined by the Inspector if necessary and includes generic vibration magnitude information for use where there is no other suitable data. The overriding aim of this assessment is to decide whether Regs 6(2) (control), 7(1)(b) (health surveillance), 8(1)(b) (information, instruction and training) and 6(4) (application of ELV) apply. One possible consequence of this is that the HSE decides to take enforcement action, even prosecution, without a detailed investigation of the work and vibration exposures. Defending or mitigating against HSE action may therefore be aided by expert evidence.
RIDDOR reports of HAVS and CTS
Appendices 4 and 5 of the Operational Guidance relate to investigations following receipt of a RIDDOR report and include a list of questions that might be asked by a visiting officer or Inspector when investigating a RIDDOR report.
Appendix 4 states that immediate enforcement action should be taken where high risks from HAV exposure are present and not controlled and managed adequately, and it recommends that prosecution should be proposed when:
There is a single case of HAVS stage 2 late or stage 3
Multiple cases of HAVS stage 1 and stage 2 early or late
There are/were exposures regularly at or above the EAV that are/were not controlled and managed SFAIRP to prevent harm.
If you are concerned about hand-arm vibration issues, and compliance with the Vibration Regulations, contact Finch Consulting. We have a wealth of experience and expertise and we can help you to get to grips with managing the risks. If you are in the position of having to defend either a civil claim for HAVS or CTS, or an HSE prosecution, Finch can also provide valuable expert evidence, if instructed by your solicitors.
For more information, visit www.finch-consulting.com