PPE legislation changed — requiring more workers to be provided with PPE

An amendment to the Personal Protective Equipment at Work Regulations 1992 has been laid before Parliament which will extend the provisions of the legislation to casual workers (referred to as ‘limb (b) workers’). This means all workers must be provided with suitable PPE, not just those who have a contract of employment in place.

The Employment Rights Act 1996 defines limb (b) as including workers who are contracted to perform work or provide services under any express or implied contract other than a contract of employment. Generally, limb (b) workers carry out casual/irregular work which may be for more than one organisation; they receive holiday pay, but not other employment rights such as the minimum period of statutory notice and they only carry out work if they choose to. They also typically are not in business for themselves.

Personal Protective Equipment (PPE) includes safety helmets, gloves, eye protection, overalls, high visibility clothing, safety footwear, safety harnesses, earplugs and respiratory protective equipment. It does not cover usual work clothing which is not designed to protect the safety of the user, clothing provided for food hygiene purposes and other equipment such as bicycle helmets designed to be worn on public roads.

PPE should only be used where the relevant hazard concerned cannot be removed or controlled in such a way to reduce the risk to an acceptable level and it is therefore generally viewed as a last resort. Employers should not charge workers for providing or storing PPE.

Companies should revisit their policies for issuing PPE on a regular basis, especially in light of the ongoing pandemic and changing work practices. It should be noted that face coverings are not regarded as PPE, but other equipment such as respirators are classified as PPE. This is because face coverings are a public health measure that protect others, and not the wearer, from the spread of Covid-19.

The amendment comes in the wake of the High Court judgment in November 2020 which concluded that the UK had failed to adequately transpose two EU directives (Council Directive 89/391/EC (the Framework Directive) and Council Directive 89/656/EC (the PPE Directive)) and in doing so did not provide workers with the right not to be disadvantaged for taking steps in response to serious and imminent danger, neither did it provide employers with obligations to provide workers with suitable PPE.

The practical implications of the amendment will see employers required to provide PPE to casual workers free of charge in the same way as they would for employees, as well as being held responsible for the maintenance, storage and replacement of any PPE they provide. The HSE has published a guidance note for any employers who are set to be affected by the changes.

The guidance states that PPE for protection against Covid-19 is generally only required for certain healthcare activities. This means that for those operating in a non-clinical setting, there should be no need to provide any additional PPE. For those who work in a health and social care setting, there are PPE requirements to reflect the additional risks to those workers who are at a higher risk of being in contact with individuals who have Covid-19. The level of PPE will vary depending upon the particular circumstances and the care being given. Further information can be found on the government's website.

The views of the industry on the amendment were sought via an HSE consultation as published on 13 December 2021. 67% of respondents agreed that the amendment would beneficial.’