Joint Committee on Statutory Instruments Thirty-First Report


Memorandum by the Department of the Environment, Transport and the Regions


The Committee considered the Control of Lead at Work Regulations 1998 at its meeting on the 31 March and requested a memorandum on the following points:

(1)  Regulation 3(1) provides that in respect of third parties who may be affected employers are to be "so far as reasonably practicable, under a like duty" as they are under the Regulations in respect of their employees. Explain the purpose and effect of this provision and in particular how it operates in relation to the duties imposed on employers by regulation 4(1), 6(2) and 8(1).

The purpose of regulation 3(1) is to extend the duties of employers with regard to the control of lead to those other than their own employees. This would include, for example, employees of other employers, visitors to the workplace or third parties who might be unintentionally exposed to lead away from the workplace through, for instance, contact with contaminated clothing. It is submitted that the regulation has this effect subject to the qualification of reasonable practicability.

Regarding regulation 4(1) it is respectfully submitted that this regulation does not place a duty on an employer in respect of his employees, but merely imposes a general prohibition on the employer. Regulation 3(1) consequently does not impact on this regulation but the effect of the prohibition would be to extend the same protection to those other than employees in any event.

Regulation 6(2) read in the light of regulation 3(1) would require an employer to prevent or control the amount of lead to which those other than his employees were exposed by means other than personal protective equipment. Whilst for the most part this might not require anything more than was done in respect of employees themselves, there could be circumstances where, for example, contractors were liable to be exposed to lead contamination to which employees of the duty holder were not exposed.

Similar considerations apply in relation to regulation 8(1). Control measures provided for preventing or controlling exposure to lead of any person, whether an employee or not, would be required to be maintained in accordance with the regulation.

(2)  Explain whether Articles 2(4), 2(5), 3(3)(i), 8(4), 10(1)(a)(ii), 10(1)(b)(iii) and 10(1)(b)(iv) of Directive 82/605/EEC, to which attention is drawn in the Explanatory Note, have been implemented elsewhere in so far as they have not been implemented by these Regulations. If they have not, explain why it was decided not to implement these Articles in full.

The following Articles have not been implemented by these Regulations for the reasons set out below:

Article 2.4

This Article requires general air monitoring and medical surveillance to be triggered where either: (i) there is exposure to a concentration of lead in air greater than 75ug/m3 calculated as a time weighted average over 40 hours per week, or (ii) where a blood­lead level greater than 50 ug/dl is ground in individual workers. The provision is implemented in the first respect by reference to "significant" exposure under the Regulations. In the second respect the Article is not implemented in the Regulations because such blood-lead level in an individual worker is not sufficient evidence of significant exposure to lead of the whole workforce. However, if exposure to lead does not exceed the level specified at (i) above, it would be extremely unlikely that any employee's blood-lead level would exceed that specified in Article 2.4 if appropriate hygiene practice were observed. In exceptional cases where this does arise, it is more appropriate for the employer to carry out biological monitoring on the individual concerned. It is submitted that this is a more effective course of action to protect the health of the employees concerned.

Article 3.3(i)

This Article sets out, inter alia, conditions for a derogation allowing the intervals between occasions of air monitoring to be extended to a maximum of 12 months. These conditions include a requirement for the lead­in­air concentration for individual workers not to exceed 100 ug/m3. The provision is (to that extent) not implemented in the Regulations as a condition concerning the frequency of air monitoring, as such lead-in-air concentration for an individual worker is not sufficient evidence of significant exposure to lead of the whole workforce. Again it is more appropriate for the employer to investigate the reasons for an individual's high blood-level and take remedial measures in respect of that person.

Implementation of the other Articles referred to is effected in other provisions as set out in Annex A to this Memorandum.

(3)  Explain whether and if so how, the following Articles of the Directive are implemented by these Regulations

    (a)  Article 2(2) read with Article 11(1) in so far as they require information to be given to workers' representatives and employees to be informed of the existence of statutory limit values;

    (b)  Article 2(3) (which requires biological monitoring of the workers concerned in specified circumstances);

    (c)  Article 5(1) (which requires a clinical examination to be carried out if an individual is found to have a blood­lead level in excess of a specified threshold) and

    (d)  Article 11(2) (in so far as it requires workers' representatives to be given certain information and workers to be consulted in specified circumstances).

The following Articles are implemented by the provisions of these Regulations as set out below —

Article 2.2

Regulations 7(1), 11(1), 11(2)(a) and (b); (guidance as to what constitutes "suitable and sufficient" information is provided in the Code of Practice approved by the Health and Safety Commission in relation to these Regulations).

Article 2.3

Regulation 10(1) and (2) (read with the definition of "significant") and Schedule 2, paragraph 2;

Article 5.1

Regulation 10(2) and Schedule 2, paragraph 3, impose suspension levels more stringent than those referred to in Article 5.1. The specific requirement of the Directive is therefore immaterial in the context of the monitoring regime under the Regulations.

Article 11.2

Regulation 11(2) requires the provision of certain information referred to in Article 11.2. So far as the Article requires workers' representatives to be given that information and workers to be consulted in specified circumstances, regulation 11(2) should be read in conjunction with the following provisions:

—  the Management of Health and Safety at Work Regulations 1992 (S.I.1992/2051), regulations 7(2) and 8(a) and (b);

—  the Safety Representatives and Safety Committees Regulations 1977 (S.I.1977/500; as amended by S.I.1992/2051), regulation 4A(c);

—  the Health and Safety (Consultation with Employees) Regulations 1996 (S.I.1996/1513), regulations 3(c).

8th April 1998

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