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Personal protective equipment

Personal Protective Equipment at Work Regulations 1992, Employers Duties

Personal Protective Equipment at Work Regulations 1992, Employers Duties

Steven Threlfall v Hull City Council
Court of Appeal – 20 October 2010

Executive Summary

Clarification of the test of “Suitability” under the Personal Protective Equipment at Work Regulations 1992 in respect of gloves provided to a council worker. 

Facts

The Appellant suffered a laceration injury to his hand during the course of his employment with the Respondent council whilst collecting bags of rubbish.  It was believed that a sharp object in the bag had penetrated his gloves.

The Appellant argued that the Respondent was in breach of its duties under Regulation 4 of the 1992 Regulations in failing to provide suitable work equipment, which did not protect against the risk of laceration.  Particular reliance was placed on Regulation 4(3) which confirms that PPE shall not be considered suitable unless it is appropriate for the risks involved, it takes account of the health and workstation of the wearer, it fits the wearer correctly, and is (so far as practicable) effective to prevent or adequately control the risks. 

The Respondent argued that the risk of a cut was low and that the gloves provided were adequate to meet that risk.  The Respondent succeeded at first instance and on first appeal.

Decision

Lady Justice Smith, with whom Lords Justice Ward & Jackson agreed, allowed the appeal and rejected the suggestion of any contributory negligence.  In the Court’s opinion:-

  • It was irrelevant that the Appellant could not show precisely how he was cut.  Causation was inferred through being injured whilst doing his job, and whilst wearing the gloves provided, if he could show they were not suitable.  
  • Only if a particular risk of injury is de minimis or involves trivial harm can Regulation 4 be avoided.  
  • The Respondent’s risk assessment was defective under Regulation 6 for failing to consider the accepted risk of laceration and the type of gloves needed. However a defective assessment would not be detrimental to an employer if it could still prove it had provided suitable PPE.
  • Suitability of such PPE must be judged at the time the equipment is provided
  • PPE will not be suitable unless all the requirements of Regulation 4(3) are met. 
  • Effectiveness is the key.  An employer must ask itself whether the proposed item of protective equipment prevents or adequately controls (i.e prevents significant injury) the identified risk.  If not, then it can never be suitable.  If it does prevent/control, then it will still only be suitable if it satisfies all the other conditions in Regulation 4(3).
  • Effectiveness and appropriateness are distinct tests.  The latter imports a concept of proportionality regarding the extent of risk and gravity of the consequences flowing from it. 
  • The standard issue gloves were plainly not effective to prevent or control the risk of laceration as they were only suitable for minimal risks according to the manufacturer, incapable of withstanding pressure from sharp objects.  It was also accepted ground that cut-resistant gloves were available which would have been effective, and no issue had been raised regarding such alternatives not being practical to use.

In passing, and of relevance to the waste disposal industry, the Court suggested that a safe system of work which depends on the need for operatives to check rubbish bags before handling is unlikely to be workable or effective to highlight hidden dangers.

Comment

This judgment underlines the stringent duties on employers to firstly consider whether risks to health can be avoided by means other than PPE but that where they cannot, they must carry out a detailed analysis of the risks to health, and consider what PPE is suitable in respect of such risks. As advised by the Court, unlike other statutory regulations, the PPE Regulations lay down a detailed checklist of factors which employers must consider in order for any PPE to be deemed suitable.   Whilst not a test of strict liability or even a requirement to find the most suitable PPE, it’s an onerous burden on employers nonetheless.  Failure to satisfy any one of the conditions will fix an employer with liability.  It is suggested that these conditions should be addressed in the risk assessment and, as seen in this case, manufacturer’s instructions on such PPE will be crucial to this assessment.  This is particularly relevant as the Court has made it clear that Regulations 4 and 6 are likely to be considered in tandem, even if (as in this case) failure to adequately assess the suitability of PPE has not been formally pleaded. 

For further information about Weightmans or to discuss any of the issues in this update, please contact Peter Forshaw, Partner, in the Commercial Insurance Team of Weightmans LLP on 0151 242 7935 or at peter.forshaw@weightmans.com.