Small Company Not Required to be ‘Up to the Minute’ on Safety Regulations

19 September 2011

Ever since the passing of the Factories Act 1961, employers have had a particular duty to provide a safe working environment for their employees. However, a large employer could reasonably be expected to be more ‘on the ball’ as regards developments in health and safety legislation than a smaller employer. This surprising conclusion was reached by the Supreme Court when considering claims for damages by employees of companies large and small for noise-induced hearing loss (NIHL) caused by working in a noisy environment (Stephanie Baker v Quantum Clothing Group, Pretty Polly Ltd. and Meridian Ltd. [2011] UKSC 17).

Noise at work was the subject of considerable research in the 1970s and various guidelines were issued. An International Standard (ISO 1999) was issued in 1975 and this was followed by a British Standard (BS5330) in 1976. These were followed by the Noise at Work Regulations 1989 (NWR), which came into effect in 1990.  

The NWR were introduced after a consultation period that ended in 1988 and were based on proposals made in 1986. These had resulted from a proposed EU Directive issued in 1983, which would require workers exposed to noise levels of 85dB(A) or more to be issued with ear protectors. Prior to 1983, there was a code of practice in force which specified 90dB(A) as the maximum noise level to which workers could be exposed.

The claimants in this case had been employed by the companies for some time before the NWR came into effect and the noise levels to which they were exposed did not exceed 90dB(A).

In the late 1980s, the employees were given ear protectors. The claimants alleged that they had suffered noise-induced hearing loss (NIHL) because of exposure to noise at work and that the employers were responsible for this.

In court, the judge ruled that larger employers were only entitled to base their policy regarding exposure to noise on the earlier guidelines until such time as the measures contained in the 1983 Directive were widely known – which he decided would be 1985. Smaller employers, however, did not have the resources necessary to be ‘up to the minute’ as regards health and safety information and could not therefore be held liable for failing to comply with the exposure levels laid down by the NWR before the legislation came into effect in 1990, which was after ear protection had been issued to the claimants in this case.

This decision was appealed to the Court of Appeal, which did not agree, leading to a further appeal to the Supreme Court.

The Supreme Court has now restored the original judgment.

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