Health & Safety Brief
January 2010

In This Issue:

• Welcome

• Harm to eyes

• Risk assessments for pregnant workers

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Welcome

Welcome to our January Health and Safety Brief – your plain English health and safety update.

In this edition we provide information on:

• The Control of Artificial Optical Radiation at Work Regulations 2010 which come into effect in April
• Risk Assessments for pregnant workers.

Harm to eyes

The Control of Artificial Optical Radiation at Work Regulations 2010 come into effect on 27th April 2010.

Their purpose is to protect workers against exposure to harmful artificial light, such as laser displays and includes sources of ultraviolet, infrared, and visible light. Too much exposure to certain light sources can be harmful to the eyes and the skin.

Examples of hazardous sources of very intense light that pose a ‘reasonably foreseeable’ risk of harming the eyes and skin of workers and where control measures are needed include:

• Metal working – welding (both arc and oxy-fuel) and plasma cutting – mainly eye damage
• Pharmaceutical and research - UV fluorescence and sterilisation systems – mainly skin burn
• Hot industries – furnaces – eye and skin damage
• Printing – UV curing of inks – mainly skin burn
• Motor vehicle repairs – UV curing of paints -mainly skin burn
• Medical and cosmetic treatments – laser surgery, blue light and UV therapies – eye and skin damage
• Research and education - all use of Class 3B and Class 4 lasers – potentially permanent eye and skin damage
• Entertainment – high intensity lighting and lasers.

Less common hazardous sources can be associated with specialist activities - for example companies manufacturing or repairing equipment containing lasers which would otherwise be hidden.

Organisations already have duties under existing health and safety law to protect workers against these hazards, and the new AOR regulations restate the requirement for risk assessment, taking steps to eliminate or reduce risks, providing necessary training, and where appropriate, health surveillance.

Safe light sources include the vast majority used in the workplace such as:

• All forms of ceiling-mounted lighting used in offices etc with diffusers over the bulb. This includes compact fluorescent floodlighting; ceiling-mounted tungsten halogen spotlights; and ceiling-mounted tungsten lamps
• Compact fluorescent lamps and tungsten halogen lamps when situated at distances more than 60cm from the user
• All forms of task lighting. This includes desk lamps, including tungsten task lighting
• Photocopiers
• Computer or similar display equipment, including personal digital assistants
• Photographic flashlamps
• Gas-fired overhead heaters
• Vehicle indicator, brake reversing and fog lamps.

More intense sources could be a problem if they are stared at for long periods or if they are in very close proximity to workers. It is our natural instinct to look away from these before harm can occur and in addition, they are often used at a safe distance from workers. These measures continue to be acceptable and no special conditions are required. Examples include:

• Ceiling-mounted fluorescent lighting without diffusers over the bulb
• High-pressure mercury floodlighting
• Desktop projectors
• Interactive whiteboard presentation equipment
• Vehicle headlights
• Non-laser medical applications such as: theatre and task lighting; diagnostic lighting such as foetal transilluminators and X-ray viewing boxes
• UV insect traps
• Art and entertainment applications such as illuminating by spotlights, effect lights and flashlamps
• Any Class 1, 1M, 2, 2M & 3R laser devices where not used in combination with magnifying aids. Examples include laser printers; CD/DVD recorders; materials processing lasers; disconnected fibre-optic systems; bar code scanners; level and alignment devices in civil engineering and surveying; and laser pointers.

What should you already be doing?
If you have a hazardous light source you should have in place sensible control measures following the principles below:

• Use an alternative, safer light source which can achieve the same result
• Prevent access of the light source to the skin and eyes of workers by engineering controls eg screening, interlocks, clamping (rather than holding) work pieces
• Organise work to reduce exposure of workers and others – restrict access to hazardous areas by non-essential staff (eg use dedicated room; screening/barriers; display warning signs), increase distance between staff and source (eg remote control, time delays)
• Issue appropriate personal protective equipment – eg goggles and face shields
• Provide information and training to employees
• Have emergency arrangements in place
• Completed a risk assessment.

You should be able to demonstrate to both staff and inspectors that you are protecting the eyes and skin of your workers from harm associated with very intense light. If you are not able to do this, you will need to do more and will need to read: http://www.hse.gov.uk/radiation/nonionising/aor-guide.pdf

Risk assessments for pregnant workers

In a recent Employment Appeal Tribunal (EAT), O’Neil v. Buckinghamshire County Council, the EAT held that, for an employer to fall under a duty to conduct a risk assessment for a pregnant worker, the following preconditions must be met:

(a) the employee notifies the employer in writing that she is pregnant;

(b) the work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby;

(c) the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.

There is no more general obligation to carry out a risk assessment for a pregnant worker. In discharging its risk assessment obligations, where they arise, there is nothing in either the Pregnant Workers Directive or the Management of Health and Safety at Work Regulations 1999 to indicate that a meeting with the worker is required before the obligation to carry out a risk assessment is satisfied. But an employer must provide her with comprehensive and relevant information on the identified risks to her health and safety.

The EAT also provides tentative support for the proposition first adopted by the EAT in Hardman v. Mallon [2002] IRLR 516 and considered in Madarassy v Nomura [2007] IRLR 246, that, if an obligation to carry out a risk assessment, and a failure to carry out that risk assessment is established, then discrimination results.

Proof of detriment is not necessary. Employers, accordingly, need to carry out risk assessments where the preconditions are met to comply with health and safety law and it would seem to prevent a claim for discrimination.

About Ellis Whittam

We are a leading firm of employment law advisers and health & safety consultants. We provide UK employers with fixed cost employment law solutions, HR support and health & safety systems. We guarantee certainty of cost, peace of mind and an unremitting commitment to service excellence. To find out how we can help your business please email Mark Ellis at markellis@elliswhittam.com or call Mark on 0845 226 8393.

Disclaimer

The information and any commentary contained in these bulletins is for general information purposes only and does not constitute legal or any other type of professional advice. Ellis Whittam Limited does not accept and, to the extent permitted by law, excludes liability to any person for any loss which may arise from relying upon or otherwise using the information contained in these bulletins. If you have a particular query or issue you are strongly advised to obtain specific, personal advice about your case or matter and not to rely on the information or comments in this bulletin.

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