PPE at work – expansion of employers’ duties

An amended set of regulations was laid before Parliament on 10 January 2022 and the legislative changes will come into effect on 6 April 2022.

PPE is defined in the regulations as “all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects the person against one or more risks to that person’s health or safety, and any addition or accessory designed to meet that objective”.

The PPE Regulations impose a general duty on GB employers to ensure that suitable PPE is provided free of charge to employees who may be exposed to a risk to their health or safety while at work, where the risk cannot be adequately controlled using other reasonably practicable measures.

Consequently, employers currently only have a duty to provide suitable PPE to employees who work under a contract of employment. The proposed changes to the PPE Regulations would extend the duty beyond employees by including ‘limb (b)’ workers (explained below).

The planned change has arisen as a result of legal proceedings brought in the High Court by the Independent Workers’ Union of Great Britain (IWGB). The union sought a judgment that the PPE Regulations had failed to properly implement elements of the European Union’s (EU’s) Health and Safety Framework Directive (EU Directive 89/391/EEC) and PPE Directive (EU Directive 89/656/EEC) into GB law.

These Directives require Member States to confer certain protections on ‘workers’, whereas the PPE Regulations, the vehicle by which GB sought to transpose the Directives, protects only ‘employees’. The IWGB maintained that this left those who are workers (within the meaning of the Directives), but not employees (as that term is understood in domestic law), without the protection that EU law guarantees. In the judicial review proceedings last year, the High Court agreed.

Limb workers include food delivery workers and drivers. Commonly, such workers are not obliged to take every job that is sent to them. Photograph: iStock

Gig workers

Although this gap in protection has existed for many years (in fact, ever since the deadline for transposing the Directives, on 31 December 1992), the matter was brought into sharp focus by the onset of the Covid-19 pandemic. The higher-than-average death rates from Covid-19 among lower paid, so-called ‘gig’ economy workers represented by the IWGB shone the spotlight on the particular needs of such workers for the protections anticipated by the Directives.

Examples of those potentially classed as limb (b) workers include some taxi and private hire drivers and chauffeurs, bus and coach drivers, van drivers, couriers and food delivery workers. Commonly, limb (b) workers are not obliged to take every job that is sent to them, meaning they can accept and turn down jobs as they wish. Payment is sent to the company contracting the service out and in return the worker receives the minimum wage and holiday pay but no other employment rights.

To remedy the lack of adequate protection for ‘workers’ (i.e. limb (b) workers) in the PPE Regulations, the legislation will be amended to include the definition of worker in s230(3) of the Employment Rights Act 1996; namely “...an individual who has entered into or works under (a) a contract of employment; or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual”.

The changes will therefore require employers to provide suitable PPE free of charge (where it is found necessary during a risk assessment), to limb (b) workers as well as employees. The PPE Regulations also require employers to ensure PPE is suitable for use; is properly maintained and replaced when necessary; to provide users with adequate and appropriate information, instruction and training on its correct use and (if appropriate) maintenance; and to take all reasonable steps to ensure the PPE they provide is properly used by workers.

These duties will therefore also apply when PPE is supplied to limb (b) workers, as well as employees. From the individual perspective, the new law imposes duties on limb (b) workers to use the PPE properly in accordance with the training and instruction they are given, ensure it is returned to the storage area provided by their employer and report the loss of the equipment or any defects with it to their employer or the business that provided it to them.

In its consultation on the changes in summer 2021, the HSE also sought views on a number of other PPE-related issues, including:

• The types of PPE that are used and how often they are replaced
• Cleaning, maintenance and storage costs of PPE
• Costs of training limb (b) workers to use PPE
• Costs of ensuring PPE is properly used
• Costs of familiarisation
• The numbers of limb (b) workers likely to be brought into scope of the PPE Regulations as a result of the change
• Whether limb (b) workers tend to supplement work done by employees or tend to do different types of work; and
• The likely additional costs and wider impacts that may follow as a result of the changes.

Two-thirds of respondents to the consultation, published in December 2021, felt there were significant benefits to amending the PPE Regulations to require employers to also provide PPE to limb (b) workers. These included: increased protection for workers; equal rights for workers; standardised PPE; less cost for limb (b) workers; and increased clarity on responsibilities. Overall, the response to the consultation was positive and was fed into the final impact assessment that has recently been published.

Zoe Betts: "Failure to meet the new PPE requirements could result in HSE enforcement action.

The amended regulations do not appear to address many of the issues noted above and it is clear that GB employers will need to look carefully at their approach to staff engagement to ensure those falling within the definition of limb (b) workers (in addition to more traditional employees operating under a contract of employment), are included in the provision of suitable PPE. With estimates suggesting that more than seven million people in the UK are likely to work in the gig economy in 2022, this will likely have significant knock-on effects on costs and resourcing for certain employers.

In readiness for 6 April 2022, the HSE has published interim guidance to help employers identify whether they and their workforce may be impacted by the changes and explaining what employers should do to prepare for the changes. It is worth remembering, as the guidance points out, that not all PPE is regulated by the PPE Regulations.

For example, crash helmets worn by workers on the road are legally required under road traffic legislation. Similarly, PPE required to guard against risks arising from lead exposure, ionising radiation, asbestos, noise and some hazardous substances are regulated and enforced under different legislation. The key point, as with so many health and safety matters, is to undertake a suitable and sufficient risk assessment which follows the hierarchy of controls and where appropriate, results in the provision of suitable PPE to all workers who need it.

Northern Ireland could follow suit

As with the PPE Regulations in GB, the equivalent legislation in Northern Ireland (NI), the Personal Protective Equipment at Work Regulations (Northern Ireland) 1993, also does not currently require employers to provide limb (b) workers with PPE. In light of the proposed GB changes, it is likely that similar steps may be taken to amend the NI legislation in line with the Directives in due course.

While the High Court in the IWGB case was at pains to stress that it was not ruling on obligations in individual cases, its decision extends health and safety protections (namely the right to be provided with suitable PPE by the employer), to a wider range of individuals.

Employers should now carefully consider the ways in which their business model may be affected and take steps to ensure they will be able to meet the new requirements. Failure to do so could result in HSE enforcement action, ranging from advice to a Notification of Contravention letter (which would trigger the Fee For Intervention invoicing scheme), to an enforcement notice (Improvement or Prohibition) or, at worst, a prosecution of the dutyholder.

HSE’s interim guidance on the changes here

Zoe is Regulatory lawyer at Pinsent Masons and specialises in health and safety law.

Contact Zoe Betts at: pinsentmasons.com