Fit testing update
August 1st 2004

The fit testing legislation is now more than 18 months old. So does this mean that all employees who wear tight fitting Respiratory Protective Equipment (RPE) now have a certificate to prove the mask they wear fits them and, more to the point, actually protects them? The answer to this question, in most cases, is no.

Since the implementation of the Control of Substances Hazardous to Health (COSHH) in 2002, it has been a legal requirement to test all wearers of tight fitting facemasks. There are no exceptions to this legislation so emergency response teams and infrequent wearers are not excluded. This significant change to the COSHH has not been widely publicised so many employers are unaware of its existence. Of over 5000 Health and Safety representatives questioned about fit testing, approximately 90% had never previously heard of fit testing. Of this 90%, even after the legislation had been explained, over 10% remained unconvinced that it either applied to them or was relevant. From the research it is clear there are still many employers who are not compliant with the current fit test legislation or who do not intend to become compliant. The decision not to comply is a gamble that may result in Enforcement Notices and/or litigation in the future. Of these, the long term potential for litigation should be of the most concern to employers.

With the current culture of litigation gaining ground and the number of claims per individual increasing, employers who leave themselves exposed are running an ever-increasing risk of legal action being taken against them. Without evidence that an employee was tested for the fit of their RPE, any claims regarding this will be extremely hard to defend. The potential for retrospective litigation is all too clearly evidenced by the increasing claims being made as a result of asbestos exposure. For example, at one shipbuilding company the average payout per employee is 17,000 (Times Online, 17/03/04) with a further 15m being set aside for future claims.

Many of the workplaces where asbestos exists also have other airborne hazards, which require workers to use respiratory protection. The building and construction trade is one of the many industries that may be storing up problems for the future through non-compliance with the legislation. For instance over 25% of deaths from mesothelioma during the period 1980-2000 (HSE Asbestos Related Disease Statistics) were in workers who had been employed in the building and maintenance industry. Other than asbestos, the main airborne hazards at construction and building sites are silica (from cement dust) and other dust particles (wood, stone etc). With HSE data showing that fine airborne dusts accounted for 20% of reported incidents of occupational asthma during 2000-2002 the implications for not carrying out fit testing are becoming clear.

The construction industry is reflective of many other industries with regard to its knowledge and compliance with the fit testing legislation. However, the construction industry has another problem to contend with before it can carry out fit testing selecting the correct RPE. According to Andy Sneddon, of the Construction Confederation, there is insufficient guidance regarding the use of RPE in the construction trade resulting in many employees wearing the wrong RPE or none at all. One example of this is a contractor who wished to purchase some additional asbestos masks for a job he was employed on. On being advised, by the manufacturer, that he should use P3 protection level or above he insisted in purchasing a P1 mask saying ..that is what we always use. So, if those concerned with health and safety are struggling to ensure the correct RPE is being used then it is unlikely they will go to the next stage in the process, of actually fit testing it even if they are aware of the legislative requirements.

Of course, lack of knowledge about the legislation is not the only reason employers are not complying. For many it is a simple economic choice it is too much trouble and expense for what, in one Health and Safety Managers words is ..a bit of red tape. Many others have taken the slightly naive view that if they have not heard about the change in legislation previously, it cannot be very important and hence they do not need to worry about it. But whatever the reason for non-compliance with the legislation, the reality is that it leaves the employer without any means of defence if they should find themselves in the unfortunate position of being taken to court by an employee or their next of kin.

For those who wish to comply with the legislation there are a number of options:

Carry out all the testing internally

Contract out the initial testing and then maintain the system internally

Contract out the testing and the on-going maintenance

A word of caution though, whoever carries out the testing, must meet the minimum requirements of a Competent Person as detailed by the HSE. Failure of the tester to meet this minimum requirement could invalidate any testing they have carried out.

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