Memorandum by the Department
of the Environment, Transport and the Regions
REGULATIONS 1998 (S.I. 1998/543)
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
(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
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.
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
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).
Regulation 10(1) and (2) (read
with the definition of "significant") and Schedule 2,
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.
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),
8th April 1998