LEV testing regulations: what the law asks of you

COSHH LEV testing in short

The Control of Substances Hazardous to Health Regulations 2002, known as COSHH, apply in England, Wales and Scotland. Regulation 9(2) covers engineering controls "provided to meet the requirements of regulation 7". For local exhaust ventilation plant, the thorough examination and test must happen "at least once every 14 months", or at the shorter limit Schedule 4 sets for the processes it names.

Those words matter. The testing duty attaches to LEV that an employer relies on to prevent or control exposure to a hazardous substance. HSG258 calls this "protective" LEV, and notes that LEV may have been required for reasons other than COSHH, such as removing unpleasant odours. The sections below show where the duty comes from.

Intervals are covered in the guide on how often LEV testing is required. This guide covers the law around them.

The chain of law, in order

Six duties lead to and include the test. The table lists them in the order they apply.

Assessment and control: regulations 6 and 7

Regulation 6(1) says an employer must not carry out work liable to expose employees to a substance hazardous to health unless a "suitable and sufficient assessment" has been made and the steps it identifies have been put in place. Employers with five or more employees must record the significant findings and "the steps which he has taken to meet the requirements of regulation 7" (regulation 6(4)).

Regulation 7(1) says exposure must be "either prevented or, where this is not reasonably practicable, adequately controlled". Regulation 7(2) says substitution is to be preferred where it is reasonably practicable. Regulation 7(3) then lists protection measures in order of priority. Engineering controls and "the control of exposure at source, including adequate ventilation systems" come before personal protective equipment, which is for cases where adequate control cannot be achieved by other means.

LEV is therefore one way to meet regulation 7, not a duty in itself. HSE's leaflet INDG408 says to consider other options first where reasonably practicable, such as changing the method of work, substituting the material with something safer or reducing the size of the source.

Regulation 7(7) says control is only adequate if the principles of good practice in Schedule 2A are applied, any workplace exposure limit is not exceeded, and, for some substances such as carcinogens, mutagens and asthmagens, exposure is reduced as low as reasonably practicable. One principle in Schedule 2A is to "check and review regularly all elements of control measures for their continuing effectiveness". Regulation 9 sets fixed intervals for LEV.

Using the system: regulation 8

Regulation 8(1) puts the duty on the employer to "take all reasonable steps to ensure" that a control measure is "properly used or applied". Regulation 8(2) puts a duty on every employee to "make full and proper use" of it and, if they find a defect, to "report it forthwith to his employer".

For LEV that means operators position the work as the system expects. If a hood is damaged or the airflow indicator shows low flow, they report it to the employer straight away. The employer cannot fix a fault nobody reports.

Regulation 9: maintain, examine, test and record

Regulation 9 has three working parts for LEV. Regulation 9(1)(a) requires plant and equipment, including engineering controls, to be "maintained in an efficient state, in efficient working order, in good repair and in a clean condition". Regulation 9(2)(a) sets the 14-month thorough examination and test. Regulation 9(4) says a suitable record of each examination and test, and of any repairs carried out as a result, "or a suitable summary thereof shall be kept available for at least 5 years from the date on which it was made".

HSE's page on maintenance, examination and testing of LEV and RPE repeats the maintenance and 14-month duties. It adds that controls mean more than the hardware: they include safe systems of work and supervision. Regulation 9(1)(b) says systems of work and supervision must be "reviewed at suitable intervals and revised if necessary".

The 14 months is the examination and test by a competent person. It does not replace the checks in between. L5 says that for LEV and work enclosures, visual checks "should be carried out at least once a week".

L5 also says defects found at an examination or test should be put right as soon as possible, and critical defects addressed immediately. A test label is not a legal requirement: HSE says "there is no specific legal requirement on employers or examiners to label LEV". The guide on what LEV testing is covers labels.

Information and training: regulation 12

Regulation 12(1) requires "suitable and sufficient information, instruction and training" for employees who may be exposed. That includes the significant findings of the risk assessment and the precautions they should take (regulation 12(2)).

Regulation 12(4) reaches further. It covers "any person (whether or not his employee) who carries out work in connection with the employer's duties under these Regulations". That person must also have suitable and sufficient information, instruction and training. It can include a maintenance engineer or an examiner working for the employer.

Who holds the duty

What the Approved Code of Practice and HSG258 are

The COSHH Approved Code of Practice and guidance is HSE publication L5. The sixth edition, published in 2013, is the one HSE lists. It contains the Code and separate guidance, and says the legal status of each is given on its page 2.

On the Code, page 2 says: "If you follow the advice you will be doing enough to comply with the law in respect of those specific matters on which the Code gives advice. You may use alternative methods to those set out in the Code in order to comply with the law." It then adds: "the Code has a special legal status. If you are prosecuted for breach of health and safety law, and it is proved that you did not follow the relevant provisions of the Code, you will need to show that you have complied with the law in some other way or a Court will find you at fault."

On the guidance, the same page says: "Following the guidance is not compulsory, unless specifically stated, and you are free to take other action. But if you do follow the guidance you will normally be doing enough to comply with the law. Health and safety inspectors seek to secure compliance with the law and may refer to this guidance."

HSG258, Controlling airborne contaminants at work, carries the same statement on guidance. L5 points employers to it: by following HSG258 and HSE's LEV pages, it says, employers "can help to ensure" that examination and testing are carried out in line with regulation 9(2). The guide to HSG258 explains what is in it.

In short, the regulations are the law. The Code is practical advice with a special legal status in a prosecution. HSG258 is guidance you are free to depart from, though following it normally means you are doing enough.

Northern Ireland

Northern Ireland has the Control of Substances Hazardous to Health Regulations (Northern Ireland) 2003. Its regulation 9 uses the same structure as the Great Britain regulation: LEV plant examined and tested "at least once every fourteen months", or at the Schedule 4 interval for the listed processes, with the record kept "for at least five years".

HSENI says every LEV system "requires a statutory thorough examination and test by a competent person, at least every 14 months", and points employers to HSG258 when reviewing quotes and designs. HSENI also publishes the L5 sixth edition as a Great Britain code "approved for use in NI" with the Northern Ireland 2003 regulations.

What to be able to show

The regulations and L5 together point to a short list of records. Each is tied to where it comes from.

Where to go next

This guide covers the law. Each of these answers one practical follow-up.