Regulator cracks down on rogue consultants

Content warning: The following story is fictional but contains examples of failings taken from real reports that may be disturbing to the readership of Acoustics Bulletin.

By Dr R M van Besouw, HM Specialist Inspector of Health and Safety (Noise and Vibration)

Barry Bumbler, BSc. SSc., packed his ACME 500 high precision decibel meter and his ZP-3 Professional digital noise meter into his rucksack, with his phone, a note pad and a Thermos. The ACME 500 was his favourite. He had got it for a bargain £18.95 online where it had an average customer review of 4.9 stars. Mr E. Fudd had given it five stars, affirming that it ‘Works as advertised. I have no way to check the calibration, but seems close enough for the money’.

It had a large colour screen, a button to flip between A- and C-weighted measurements and a pause button. The ZP-3 Professional had been reduced from £45.40 down to £26.33 and he could see why. It didn’t have a colour display, he had not been able to decipher from the manual what all the symbols meant and the foam ball kept falling off, but at least he could make recordings with it. The job today was a workplace noise assessment at Wile E Woods Ltd on the Isle of Wight, a joinery site just outside of Ryde that would earn Barry £450. He had agreed with the Managing Director to turn up at 10:30 and reckoned that, allowing for a 45-minute lunch break at Tony’s Fish & Chip Shop, he could be away on the 13:00 ferry and save a few quid with a saver ticket.

On arrival at Wile E Woods it turned out that the MD was working from home on the mainland. The Operations Manager, Steve, greeted Barry instead, showed him around the site and made him a cup of very hot tea in a mug that had ‘measure twice, cut once’ on the side of it. Barry pointed out to Steve that he would indeed be measuring twice with his two high precision noise meters. The site was pretty straightforward, an upstairs with an office, boardroom and kitchen area, and a machine shop downstairs with various woodworking machines. As he was upstairs and his tea hadn’t cooled down enough to drink yet, Barry decided to start his noise survey in the office. He waved the ACME 500 around slowly in a wide figure-of-eight to sample as large an area as possible before pausing the measurement and jotting down the value on his note pad. He repeated this process with the ZP-3, and then repeated it again with the foam ball rammed firmly back on the microphone. 

The noise levels in the kitchen area, Barry noted, could be more variable. It had a kettle and a microwave, and so he took great care to measure the levels with these appliances off, with the microwave on, with the kettle on, and then with the microwave and the kettle on. He checked the time on his phone: 11:30. Half an hour until Tony’s Fish & Chip opened and time to start making measurements in the machine shop downstairs. There were fewer workers about than when Barry had been shown around the machine shop by Steve earlier that morning. Two workers were operating a large machine that emitted a harsh buzzing sound as one fed a plank of wood into the machine and the other waited at the far side to retrieve the (slightly thinner) plank as it was expelled. In between planks Barry could just about hear the machine shop radio over the drone of the dust extractor.

The machine was similar in appearance, size and shape to two other machines nearby, which Barry observed would save him some time; no need to measure all three. He held the ACME 500 and the ZP-3 in each hand and set them going as soon as the next plank of wood was being fed into the machine. When the plank emerged from other side, he paused the ACME 500 and then pressed stop on the ZP-3. The values differed slightly, the ACME 500 was displaying 88.1 dBA whilst the ZP-3 was showing 75.95 dB and a flashing spanner. Barry reckoned if he averaged the values the level would be accurate enough. That left a sander, band saw, a panel saw and various other machines that were not in operation. After a couple of quick measurements using discarded offcuts, time was fast running out. Barry decided that he would infer the levels for the remaining machines from their user manuals.

With the measurements in the bag, Barry popped back up to the office to let Steve know that he had completed his survey and that Wile E Woods would have his report by the end of the week. Steve asked him if he thought hearing protection was necessary. Barry’s mind now on the menu (mushy peas or a side of curry sauce?), he advised that the levels were likely to be fine, so long as they turned down the radio in the machine shop.

HSE’s multi-year Workplace Noise Intervention targets poor performing consultants
The inspiration for the story above comes from a selection of consultants’ noise reports that have been obtained from duty holders by Health and Safety Executive (HSE) inspectors since the start of its Workplace Noise Intervention in April 2024. The name of the consultant, the ‘noise meters’, the premises and the location have been changed, but the failings are very real and all too common. Noise reports are being collated and reviewed as part of phase one of HSE’s multi-year Workplace Noise Intervention. During phase two, HSE Specialist Inspectors will be using this evidence to target poor performing consultants.

Regulation 5(1) of The Control of Noise at Work Regulations 2005 requires employers to carry out a risk assessment if any employee is likely to be exposed to noise at or above a lower exposure action value. This duty falls on the employer and cannot be delegated to a noise consultant, although the services of the latter may be required in order to undertake a suitable and sufficient risk assessment. Regulation 7(1) of The Management of Health and Safety at Work Regulations 1999 also places a duty on the employer to ensure that any persons appointed to carry out tasks involved in risk assessment are competent to do so. Noise consultants have a legal duty under Section 3 of the Health and Safety at Work etc. Act 1974 (HSWA) to ensure the services they provide do not put others at risk.

Section 3 HSWA material breach
What would constitute a Section 3 HSWA material breach? There are many possibilities, but in a nutshell, anything which creates a risk of harm to others not employed by you, or that allows a risk of harm to others to persist. Examples from the not entirely fictional story above include underestimating exposure due to the use of instrumentation that is unsuitable for workplace noise measurements, incorrect metrics, poor sampling, inadequate observation of work practices (e.g., failing to consider all of the noisy activities undertaken by workers during a shift) and gross calculation errors.

Other failures that would amount to a material breach include:
• failing to advise on noise control techniques where widely accepted reasonably practicable measures exist;
• falsely deeming an existing control to be adequate; or
• offering false assurance – for example, by stating that hearing protection is unnecessary when exposures are in fact hazardous.
Where a poor standard of service leads to a material breach of health and safety law, the HSE will take enforcement action against the noise consultant, incurring a fee for intervention.

Above: Barry taking a breather

‘Noise consultant’ is not a protected title and a noise consultant does not have to be registered with a professional association. There is nothing to stop an individual from advertising themselves as a noise consultant and undertaking a workplace noise assessment using little more than an app on their smartphone. Furthermore, consultancies may offer a range of health and safety services, with competence in one area, e.g., local exhaust ventilation testing, leading to assumed competence in others, such as workplace noise assessment.

HSE and IOA support
What are the HSE and IOA doing to combat poor consultants? To support employers in appointing competent noise consultants, the Association of Noise Consultants (ANC), British Occupational Hygiene Society (BOHS), IOA, Institution of Occupational Safety and Health (IOSH), and the HSE recently produced the ‘Buyer’s Guide – Workplace Noise Consultant’. Available from the BOHS website (https://www.bohs.org/app/ uploads/2021/09/Buyers-Guide- for-workplace-noise-consultants. pdf) the top two questions in the Buyer’s Guide prompt the duty holder to check that the consultant is a member of an appropriate professional body and is suitably qualified to measure and assess workplace noise.

The IOA Certificate of Competence in Workplace Noise Risk Assessment is one such qualification. Running since 1990, this week-long course covering health and safety legislation, measurement and instrumentation, noise risk assessment, noise reduction techniques, hearing protection and hearing health surveillance, has and continues to play a critical role in raising the standard of workplace noise consultancy.

What IOA members can do to support this crackdown on rogue consultants
Here are three simple things:
1. Make it easier for duty holders to find you; keep your IOA membership details up to date and ensure that you appear in the IOA website’s Membership Check and Find a Supplier listings.
2. Publicise the IOA Certificate of Competence in Workplace Noise Risk Assessment on social media https://www.ioa.org.uk/training/certificate-competence-workplace-noise-risk-assessment and support the running of this course, e.g., by offering case studies or a guest lecture.
3. Help educate employers in knowing what questions to ask of a consultant by promoting the Buyer’s Guide. By doing these things you will be magnifying the deterrence effect of HSE’s Workplace Noise Intervention and protecting the reputation of your profession.

Selecting a consultant
You should expect Yes answers to the questions highlighted in GREEN and hope to get yes answer to the questions in AMBER

For the latest on HSE’s Workplace Noise Intervention, see Steel, C. 2024. Initial results of the Health & Safety Executive’s workplace noise enforcement programme 2023-24. In Proceedings: Acoustics 2024.