We look at a proactive HSE prosecution case that combined the instincts of a tenacious HSE inspector with the technical knowledge of one of her colleagues to hold a LEV examination and testing company to account.
Speak to any Health and Safety Executive (HSE) inspector and they will admit that most of their prosecutions arise reactively: an accident or injury occurs, and they are sent in to find out what has happened and, if necessary, prosecute any liable parties. But for HSE inspector Rose Leese-Weller, her professional instincts during one inspection made her feel it was important to be proactive.
In 2019, Rose was inspecting a laser cutting company when she found fumes from the process which didn’t seem to be properly controlled by the local exhaust ventilation (LEV).
‘When I go out to a company, I look to see whether I think the fumes, the dust etc. are being adequately controlled. For example, is the workplace generally clean or are there high levels of fume or piles of dust all over the place? If there are, that can be a sign that the LEV isn’t working properly,’ Rose said.
‘In the case of the laser cutting firm the fumes from the welding and laser cutting did not appear to be adequately controlled. Welding fumes can be carcinogenic or respiratory sensitisers depending on what is being welded. I served the company with an Improvement Notice to have their LEV thoroughly examined and tested.’
The LEV Thorough Examination and Test (TExT) company it employed – Airtec Filtration Ltd – said the LEV was working adequately. When Rose went back to check compliance with the notice, the fumes still didn’t seem to be controlled and she was concerned about the examination and tests carried out by Airtec.
Calling in the experts
‘I recalled six months previously a colleague asking to let them know if anybody came across a company called Airtec,’ said Rose. ‘This colleague had visited a paint company and had had found similar issues to me, in that substances hazardous to health were not being adequately controlled by the LEV that Airtec had passed as providing adequate control.’
Rose decided to draw upon some of HSE’s expert knowledge, namely occupational hygiene inspector Gordon Smith.
‘Gordon is one of HSE’s LEV experts. When I contacted him and explained what I had found he agreed that this required further investigation.
‘We contacted local inspectors and found a company that makes office furniture had employed Airtec for their LEV TExT. When he went in a few weeks later to assess the LEV system and compared it with the Airtec report, the LEV had been passed as satisfactory by Airtec, but Gordon’s knowledge, experience and measurements he took indicated that this could not be the case.’
Rose and Gordon selected a few businesses involved in high-risk activities in terms of asthmagens and carcinogens. Rose contacted these companies to request their LEV TExT reports, as well as contacting the inspectors who had visited them most recently to ask about the conditions in the premises. Rose said: ‘We started to look at Airtec’s work in detail and we found the LEV TExT reports were poor. They didn’t meet the requirements of paragraph 186 of the COSHH ACOP.’
Getting on site
With some concerns from the paperwork, the next stage was to visit some of the sites identified.
‘We focused on five companies – the original laser cutting company, an office furniture company, two bakeries and a rubber company,’ explained Rose.
‘I contacted them to arrange visits with Gordon to look at their LEV systems in person. Gordon carried out the technical work assessing the LEV systems and comparing them with the most recent TExT report. We found that all the reports were missing key elements, including the failure to correctly identify carcinogens or asthmagens, and that the LEV often failed to provide appropriate levels of control for the substances hazardous to health, which was not indicated on the reports. This meant that the dutyholder did not make any corrective actions to ensure that their employees were not exposed to substances hazardous to health.’
The investigation found that the engineers employed by Airtec were not adequately trained. However following enforcement action, the company provided training to its engineers by the British Occupational Hygiene Society.
Rose added: ‘When finances are tough, companies may go to the cheapest service provider without undertaking sufficient checks for the providers experience and competencies.
‘If someone gets occupational asthma from flour dust or becomes ill from other substances hazardous to health, they can’t work in that industry anymore. It is a life-changing, debilitating illness. So, it’s important to choose the right contractor for the work. Following our findings, I felt that we had the necessary evidence, and it was in the public interest to prosecute.’
A fine result
On 4 November at Manchester Magistrates’ Court, Airtec Filtration Ltd admitted contravening section 3(1) of the Health and Safety at Work Act. The company was fined £2,666 and ordered to pay costs of £4,074.
The company told the court it has since stopped carrying out thorough examination and testing.
‘In terms of the outcome in court, the important point isn’t the size of the fine, it’s about the principle involved,’ concluded Rose. ‘It’s about ensuring that workplaces are safer and – most importantly – empowering employers to ask their contractors questions about health and safety, so that they are protecting employee health and safety. Companies need to be intelligent customers and ensure they are getting the right people to do the job.’
It's also about contractors taking responsibility for their actions.
‘There was an interesting comment from Airtec at the sentencing hearing that was something along the lines of, “there are plenty of other companies out there that do exactly the same as we do”. The judge simply said, “they’re lucky they’re not on the stand”.’
HSE’s renewed approach
HSE’s lead on LEV systems, principal inspector of health and safety Duncan Smith, said the Airtec case is one of a number of proactive HSE prosecutions focusing on service providers.
‘If a testing company is not performing as it should do and that leads to risk at a duty holder’s site, we can and do take enforcement action. This particular case is a really good example of Rose spotting the risk and following through on it,’ he said.
‘Improving service provision is one of our key strategies and we are also looking at proactive prosecutions related to exposure monitoring service provisions, which have led to false assurance at the duty holder site about the level of risk to workers.
‘The actions of these service providers can impact on many people. As a regulator, taking these kinds of prosecutions helps to get the message to service providers that they need to be competent to do the work. These prosecutions also help to get the message to duty holders to try to improve commissioning of service providers, so they drive up standards via that route. Taking enforcement action also sends an important message to everybody in the industry.’
LEVs – Getting technical
Duncan Smith, HSE lead on local exhaust ventilation systems, explains the important legislative and technical details around LEVs.
‘Local exhaust ventilation systems are a key control under Control of Substances Hazardous to Health Regulations 2002 (COSHH). If you can’t substitute or eliminate the hazard, you may need to use LEV to control the risk,” Duncan says.
‘Section 9 of the COSHH regulations is about ensuring that engineering controls are maintained in an efficient state, in good working order, in good repair and in a clean condition. COSHH regulation 9.2(a) says duty holders should ensure there is a thorough examination and test of their LEV system at least once every 14 months. HSE Health and Safety Guidance (HSG) 258 says a thorough examination test should consist of a visual inspection in stage 1; in stage 2 some measurements of performance; and in stage 3 there is the assessment of whether the engineering control actually provides adequate control of exposure.
‘Often, LEV TExT service providers miss out that last element. They do some measurements, but they haven’t really appreciated what the hazard is and how the LEV system interacts with the hazard in order to provide adequate control. They might say the system has the right velocity. However, if it’s the wrong design or it is being used incorrectly, it isn’t going to provide adequate control of exposure. If the test provider doesn’t point out deficiencies in the system or the way it’s being used to those using it, that’s where the risk in terms of section 3 of the Health and Safety at Work Act comes into effect.
‘Often those doing the test simply don’t understand the hazard. For example, they haven’t appreciated it’s not just ‘dust’ in a bakery, it’s actually flour dust, which is an asthmagen. There’s a common misconception, especially among people who perhaps don’t have the right level of competence, that food dust isn’t particularly harmful, but you need to know that flour dust is one of the top causes of asthma in Great Britain. As a result of that, control needs to be to as effective as reasonably practicable.’