An employer’s responsibility to their workforce regarding the provision of Personal Protective Equipment (PPE) is changing, with employers and now “workers” having duties with respect to the provision and use of this equipment.
PPE requirements of other legislation are unchanged
Crash helmets needing to be worn by riders on the road, due to legislation for road traffic, or legislation where PPE is required to reduce risks but regulated and enforced under other regulations, such as:
- Lead exposure by the Control of Lead at Work Regulations 2002;
- Ionising radiation exposure by the Ionising Radiation Regulations 2017;
- Asbestos exposure by the Control of Asbestos Regulations 2012;
- Noise exposure by the Control of Noise at Work Regulations 2005; and
- Exposure to Substances Hazardous to Health (i.e. chemicals, fumes, dusts, non-water vapours, nanotechnology, and / or gases) by the Control of Substances Hazardous to Health Regulations 2002.
What is PPE? (unchanged)
PPE is defined 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 hierarchy of control (unchanged)
PPE should be the last defense an employer or self-employed person relies upon to protect their workers or themselves against risks to their health and safety. Other control methods should be given proper consideration, which includes:
- Eliminating the risk of harm – physically removing the hazard – the most effective method;
- Substituting the hazard– replacing it with a less harmful version of itself;
- Engineering controls– physically isolating people from the hazard;
- Administrative controls– changing the way people work, giving workers a SSoW;
- PPE – protect the worker with personal protective equipment – the least effective method as the risk from the hazard still remains.
What does this mean for employers – what has changed?
In the UK, section 230(3) of the Employment Rights Act 1996 defines workers as falling into two categories or “limbs”:
- Limb (a) describes those with a contract of employment. This group are “employees” under the Health and Safety at Work etc Act 1974 and were already in the scope of PPER 1992;
- Limb (b) describes workers who generally have a more casual employment relationship and work under a contract for service – they do not currently come under the scope of PPER 1992
PPER 2022 captures both employees and limb (b) workers within its regulation 3. So where an employer (the person by whom the worker is employed under their worker’s contract), determines PPE to be necessary, after conducting their risk assessment of the task, activity, equipment / machinery in use, or the working environment, and following the hierarchy of controls – there is a legal duty to provide PPE – free of charge.
Generally, workers who come under limb (b) will:
- Carry out casual or irregular work for one or more organisations;
- After 1 month of continuous service, receive holiday pay but no other employment rights, such as the minimum period of statutory notice;
- Only carry out work if they choose to;
- Have a contract or other arrangement to do work or services personally for a reward (the contract does not have to be written) and only have a limited right to send someone else to do the work, for example swapping shifts with someone on a pre-approved list (subcontracting);
- Are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly).
As every employment relationship will be specific to the individual and employer, the precise status of any worker can ultimately only be determined by a court or tribunal. NB: These changes do not apply to those who have a ‘self-employed’ status.
What does this mean for workers?
Where a risk assessment indicates a worker requires PPE to carry out their work activities safely as per the hierarchy of control, the employer must:
- Carry out a PPE suitability assessment and then:
- Provide suitable PPE and where necessary training for its use, free of charge, just as they do for employees;
- Maintain, provide safe storage for and replace any PPE provided.
Workers will be required to:
- Report any defects found with provided PPE;
- Report its loss;
- Use the PPE in accordance with the training and instruction provided;
- Ensure the PPE is returned to the storage / accommodation provided by the employer.
Employers with both employees and limb (b) workers
All PPE provided must be compatible, maintained and correctly stored. All workers must use the PPE properly following training and instruction in its use from their employer. If PPE provided is lost or becomes defective, workers should report that to you.
Employers with only limb (b) workers
You need to ensure that your workers are provided with PPE free of charge, where required. This means assessing the residual risk once all other measures (such as engineering controls) have been taken. You then need to ensure suitable PPE is:
- provided (free of charge)
- compatible
- maintained
- correctly stored
- used properly (with efforts undertaken to train / instruct workers in its proper use)
How will Personal Protective Equipment at Work Regulations be enforced?
HSE inspectors already routinely include assessments of PPE in use as a part of their inspection regimens. Enforcement action can range from verbal or written advice to enforcement notices and, in the most serious cases, prosecution of duty holders.
To ensure there is no misunderstandings it is recommended that employers determine a methodology to record the provision of PPE, any instruction and training provided regarding why it is needed and its use and as necessary the return of PPE issued, as this will evidence the employer’s due diligence and compliance with the law.
Do you need to discuss any other health & safety related issues? Please do not hesitate to contact Kingfisher for advice.