In the news recently, James Barry, a former Royal Marine, took the Ministry of Defence to the High Court, claiming damages over hearing loss he says he suffered after a training exercise in the United States.

Mr Barry was awarded £713,715, after the High Court rejected the MoD’s argument that he had in some way contributed towards the hearing damage through his own negligence.

The exposure to noise occurred between 2013 and 2017 and, Mr Barry said, was due to not having suitable protection or training. While the MoD had admitted “primary liability”, they said that Mr Barry had not used ear plugs properly.

Mr Barry contended that the yellow foam ear inserts provided were inadequate and not suitable for use because they often fell out. The problems he was having with his hearing were acknowledged by the MoD after he underwent hearing tests, but they continued to send him on exercises and subject him to unprotected noise exposure.

The judge decided that the responsibility for Mr Barry’s hearing problems fell overwhelmingly on the MoD.


What does the law say?

Under the Health and Safety at Work Act 1974, employers have a duty to ensure the health and safety of their employees and others affected by the work that they do, so far as is reasonably practicable.

The Control of Noise at Work Regulations 2005 place duties on employers to assess risks to employees from noise and manage those risks.

Employers must provide hearing protection and hearing protection zones if noise levels are 85 dB(A) (daily or weekly average exposure) and they must assess the risk to workers’ health and provide them with information and training when levels are 80 dB(A).


What are the risks?

If employees are exposed to excessive noise levels regularly and/or for prolonged periods of time, the risk of temporary or even permanent damage to their hearing is inevitably increased.

The Noise at Work Regulations state that employees must not experience:

  • daily or weekly exposure of 87 dB(A)

  • peak sound pressure of 140 dB(C)

These noise exposure levels must not be exceeded. These are called exposure limit values.

The exposure limit value of 87 dB(A) takes account of any reduction in exposure provided by hearing protection, above which workers must not be exposed.


How to reduce risks from noise

Noise at work is clearly a significant risk to the health of employees and, if not handled correctly, can end up costing the employer dearly.

It is therefore important to take steps to reduce the risks from noise. Those steps are as follows:

Carry out a risk assessment to identify the measures which need to be taken to meet the requirements of the legislation

  • Put safe systems of work in place

  • Develop a health and safety policy and ensure it is followed

  • Provide employees with hearing protection if the risk assessment identifies the need for it, and make sure employees wear it when required.

  • Carry out health surveillance where there is a risk to health

  • Carry out regular testing to make sure the noise is within the permitted levels, and keep records of the test results – they may be needed later

  • Indicate noise areas with clear signs

  • If it is possible, use soundproofing to provide protection

  • Lay out the workspace so there are quiet zones

  • If there are settings on equipment that generate less noise, use them where possible

  • Limit the amount of time employees spend using power tools

  • When purchasing or leasing equipment, check to see how much noise it creates before making a decision.

  • Have non-verbal communication methods in place for employees in noisy areas to avoid the temptation to remove hearing protection

As well as carrying out the above tasks, it is important for employers to acknowledge that it is likely to be the employee who first notices a problem with their hearing. To that end, employers should operate an open door policy and encourage employees to raise any issues they may have and seek appropriate medical advice, if required. The employer may be able to assist through a referral to an occupational health specialist.



Although PPE is the final step on the hierarchy of protective measures, when it is issued, there are several factors to be aware of.


Maintain effectiveness

As with all PPE, hearing protection should be checked to make sure it works effectively and that:

  • it remains in good, clean condition

  • earmuff seals are undamaged

  • the tension of the headbands is not reduced

  • there are no unofficial modifications

  • compressible earplugs are soft, pliable and clean

Effective maintenance can be achieved by having a PPE inspection register and schedule, so it is clear when it was last inspected and by whom.


Information and training

Employees using hearing protection must be given instructions on how to fit it correctly and how to use it. This will include information on why the hearing protection is being provided, where and when it must be used, and how to avoid situations where the effectiveness of the protection might be reduced.

Training should also cover storage and care of the equipment, when to report damage or deterioration and how to get new or replacement protection.

Training needs to include a reminder that the length of the job is immaterial – hearing protection should be worn for all jobs, even those that might take a few minutes.

As with all PPE, hearing protection must be provided free of charge to employees.

Depending on whether they visit noisy areas of the premises, a supply of hearing protection should be available for visitors to use.


In conclusion

This case proved expensive for the Ministry of Defence, although the size of the organisation means that it would be considered less of a blow financially than might be the case for smaller organisations, who might find such an outcome extremely damaging.

As we have outlined above, there are ways to reduce the risk of hearing damage to your employees; if you do not have health and safety expertise within your organisation, it is a very good idea to check on what safeguards you can implement and obtain expert guidance from experienced legal and safety professionals.