Sometimes there can be push-back from employees regarding health surveillance at work, meaning the hearing testing element in the case of noise. Employers may be tempted to use a disclaimer that it was offered but the person(s) refused to attend, but is this legally compliant?

Key points:

The Control of Noise at Work Regulations 2005 (Noise Regs) say that if employees have noise exposures of 85 dB(A) or 137 dB(C) or over, then health surveillance has to be undertaken.
For noise risks, this means hearing testing and an associated wider review of hearing health.
The Noise Regs also have a clear requirement that employees must attend and must co-operate with the process.
Disclaimers cannot be used that it was offered and someone chose to refuse to attend. Disclaimers do not remove the legal obligations both employers and employees have for health surveillance.

What the Noise Regulations say about health surveillance

These are the key extracts from the Noise Regs in L108 Controlling Noise at Work, Third Edition from the HSE.

For the employers:

“If the risk assessment indicates that there is a risk to the health of his employees who are, or are liable to be, exposed to noise, the employer shall ensure that such employees are placed under suitable health surveillance, which shall include testing of their hearing.”

— Regulation 9(1), Control of Noise at Work Regulations 2005

and for the employees:

“An employee to whom this regulation applies shall, when required by his employer and at the cost of his employer, present himself during his working hours for such health surveillance procedures as may be required.”

— Regulation 9(5), Control of Noise at Work Regulations 2005

The accompanying guidance from the HSE expands slightly by saying the employees are required to co-operate with the health surveillance programme.

(And yes, even though it is 2026, in the Noise Regs. all employers and employees are indeed ‘him/his’. Ladies, it would seem that under H&S law it is back to the kitchen sink for you…)

A ‘noise risk’ is someone who is routinely exposed to average noise levels at or above 85 dB(A) or peak levels of 137 dB(C).

There is a little more in the Noise Regs than the extracts above, but only in that it brings more people into the health surveillance needs, not gives more opt-outs. For example, if someone has an existing health issue which makes them more at risk from noise exposures then they should also be included in a health surveillance programme, even if their exposures are below the main 85 dB(A) or 137 dB(C) limits.

Health surveillance for people with no noise risk at work

As a point of clarity, some employers choose to have a health surveillance programme where there is no actual noise risk. Either there is no noise generally, or only some personnel work in a high noise area but the employer chooses to include everyone in a health surveillance programme anyway.

In these cases, if someone is not working in an area with a noise risk (typically meaning they are not require to wear hearing protection as a routine part of their job) and/or have no other hearing issues which puts them at risk, then they can refuse to attend. There is no legal obligation for the employer to provide the health surveillance and no legal obligation for the employees to attend.

Case study: Refusal to attend health surveillance

When doing a noise assessment on a site in 2026, about half the staff were identified as working in areas where average noise levels were over 85 dB(A), meaning health surveillance is therefore required by the Noise Regs.

The employer commenced the arrangements for it, but a core of staff refused, saying to the employer, “my health is my business and nothing to do with you.”

The employer understood that the law says it is mandatory, but they then received some advice from their external Health and Safety advising company that:

An employee can legally refuse an occupational health referral, but doing so may have significant workplace consequences depending on the circumstances.

Employees cannot be forced to undergo an occupational health assessment. Under UK medical ethics, absolute medical consent is required, meaning a clinician must obtain explicit permission before proceeding, and employees can stop the assessment at any time.

The company in question is very specialist in what they do so replacing staff is something of a nightmare, meaning they were somewhat stuck.

They were aware the legal requirement for health surveillance is mandatory in law.
Employees were refusing to co-operate or attend.
An external health and safety advisor was saying ‘ethics guidelines’ mean they can indeed refuse.

The company was therefore thinking of arranging health surveillance and having a disclaimer for employees to sign if they chose to refuse to attend, saying it was their choice to not undergo health surveillance.

As I am neither their H&S advisor nor their Occupational Health provider I don’t have a horse in the race and they asked me for advice on whether this was OK.

My initial advice was ‘law beats guidance’, and the law says they will attend, and not only will they attend but that they will co-operate with the process. I.E. they will not refuse to give answers or make up answers, or when going through the hearing testing element will not just refuse to press the button or press it randomly. That was however rather contradictory to the comments from their external H&S advisors.

So, to confirm it either way the best approach was to ask the HSE themselves about it. I emailed a Principal Specialist Inspector (Occupational Health) for one of the UK regions, explaining the issue and asking what their stance would be. The response was:

“Health surveillance is mandatory when identified by a risk assessment. Workers may incorrectly be given a way of not attending by signing a disclaimer or something similar. Also, some employers incorrectly think this takes away their responsibility to deliver statutory health surveillance, it does not.”

— Principal Specialist Inspector (Occupational Health) HSE.

That is very clear:

If there is a noise risk then the requirement for health surveillance is mandatory.
An employer cannot offer it and then have staff sign a disclaimer saying they choose not to attend.
There are no ‘opt outs’ from health surveillance for employees - if it is arranged they must both attend and co-operate with the process.

If someone refuses to then it should be dealt with via the internal disciplinary procedures.

There was actually a subsequent comment from the HSE which I think is important and really underlines the strength of the requirement for health surveillance to take place.

“The H&S professional giving the advice [that people can refuse health surveillance] is incorrect. I strongly advise you raise an anonymous concern about this with the HSE. This is because I make the assumption that they will repeat the same incorrect advice to all their customers”

As it is, I don’t know which company gave that advice, nor do I want to know, and to be honest even if I did I wouldn’t report it and would just feedback to the company directly that there are issues so they can amend their own systems. It does however emphasise just how wrong the HSE think the advice was that people can indeed choose to not attend health surveillance.

Work with employees

Quite often, this kind of issue can arise where employees misunderstand the health surveillance systems - the word ‘surveillance’ probably doesn’t help. I would recommend employers:

Involve the employees from the start. Tell them it is needed, including why, and tell them which Occupational Health company you are thinking of using.
Explain what the health surveillance will actually entail.
Explain that the employer actually receives very limited information back from the occupational health company as the data is treated as confidential.
Explain that it is for their benefit. It helps the employer identify if there are any ongoing noise issues in their workplace, and can also help employees by early identification of any potential hearing issues, hopefully long before it becomes serious.

Summary on refusals to attend health surveillance at work

The same law which requires an employer to provide health surveillance, including hearing testing, at work also requires employees to attend. There is no opting out and disclaimers cannot be used for someone to say they choose to not attend. The requirements on both the employer and employee have no allowance for a ‘best attempt’ at it.

The HSE’s stance is that if it is needed, then it must be done.

Employers are then expected to take steps to ensure compliance.

Anything about ethical guidance saying people can refuse to attend is incorrect. In the game of regulatory rock, paper, scissors, law beats guidance and the law says it has to be done.

If there is no noise risk and the employer is choosing to have a health surveillance programme anyway then yes, a person can refuse.

FAQ: Refusal to attend health surveillance

What has my health got to do with my employer? It’s private.

When you are at work, it is not as private as you may think.

An employer needs to know if someone has been injured at work, if they didn’t then nothing would ever improve as the assumption would be that everything is clearly OK. An ‘injury’ could be anything such as a bang on the head or losing a finger, but ill health is also an ‘injury’. Hearing loss from workplace noise is an injury, and employers need to know about it, which comes via health surveillance.

As an incoming change in 2027, employers will be required to report cases of developing noise induced hearing loss to the HSE, as they currently have to do for many other causes of injury at work.

I don’t want an employer to know the details of my health.

There are a lot of guardrails around health surveillance and employers get a lot less information about it than you may assume. It can be frustrating for employers just how little information they get.

The occupational health company (or person if it is in-house) has the information but they keep it secure and confidential. The employers get very little back other than overall trends and a note if someone has a potential issue but very little on what that issue actually is.

At that point the person concerned will be asked to give their consent for the employer to know more and if they say no then so be it. The medical personnel undertaking the health surveillance may tell the employer about actions they need to take but without the person’s consent, they will not tell them medical details.