Responsibility for hearing testing in Agency staff
Key points on who is responsible for hearing tests in Agency staff.
This is clear in the Control of Noise at Work Regulations 2005.
The Regulations state that the employer have duties to provide health surveillance for their own employees.
As the Agency is the employer, they have the responsibility to provide hearing testing, not the host company.
One of the main outcomes from a noise assessment is often a need for health surveillance - hearing testing - and that applies to everyone regularly exposed to levels over 85 dB(A). Where it can get a little more complicated is agency staff, especially who is responsible for the hearing tests on agency staff.
Extract from L108: a company only provides health surveillance for their own employees.
The HSE are very clear on this. The host employer has no obligation to provide screening hearing testing for agency staff and the legal responsibility for them rests with the agency person’s employer, the agency themselves.
Testing agency staff can not only be outside the employer’s responsibility in the Noise Regs, it can also be hellishly expensive. I came across one employer with about 25 actually staff, but who had over 450 agency staff present over the course of a year. If they tried to provide hearing tests for all of them that was a massive increase in complexity and cost.
In a lot of cases, the Agency is contracted to provide X number of personnel, but those personnel may be transitory and only stay for a few weeks or months, or even days.
Possible GDPR issues
If the host employer chooses to test agency staff as well, be aware it does potentially introduce a complication under GDPR. GDPR allows for data to be processed where there is a legal requirement to do so, but with Agency staff that legal requirement rests with the Agency, not the host company. That means the host company has lost a strong justification for processing the data, or if they use an external occupational health provider getting a 3rd part to process that data for them.
My recommendation is that the contract with the Agency specifies that the Agency will provide staff who are subject to regular hearing health surveillance.
Remember, the host employer still needs to do the actual noise assessment for the site, provide hearing protection and train the Agency staff on the specific noise risks present and the need for the hearing protection.
FAQ: Providing hearing tests for Agency staff
The Agency never do the hearing tests, can we just include them in with our staff?
You can and there is nothing in the Noise Regs saying you cannot do this but don’t forget GDPR. In that there is the proviso that personal data can be process if there is a legal requirement to do so. As there is no legal requirement for a host employer to provide health surveillance for Agency staff, the host company has now lost that justification for the data processing.
More information and help on hearing health surveillance
