On 6th April 2022, the Personal Protective Equipment at Work (Amendment) Regulations 2022 (PPER 2022) came into force and amend the 1992 Regulations. The types of duties and responsibilities on employers and employees under the prevision iteration of the regulation remains unchanged, however the duties regarding Personal Protective Equipment (PPE) now extends to ‘limb (b)’ workers.
The amendments to the regulations result from a High Court ruling in November 2020 that found the UK Government had failed to adequately transpose two aspects of EU health and safety directives into domestic law to protect limb (b) workers.
What is PPE?
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’.
What is a limb (b) worker?
There are two main employment statuses for employment rights: ‘employee’ and ‘worker’. Employees are defined as limb (a) and workers are defined as limb (b) in the Employment Rights Act 1996.
Under PPER 2022, a new definition of the term ‘worker’ has been introduced which encompasses both employees and limb (b) workers. A ‘worker’ according to PPER 2022 applies to ‘an individual who has entered into or works under:
- a contract of employment; or
- 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 of any profession or business undertaking carried on by the individual;
and any references to a worker’s contract shall be construed accordingly.
Generally, limb (b) workers:
- Carry out casual or irregular work for one or a number of organisation(s);
- Receive holiday pay, but not other employment rights such as the minimum period of statutory notice, after one month of continuous service;
- 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 doesn’t have to be written) and they only have a limited right to send someone else to do the work, for example, swapping shifts with someone on a pre-approved list (subcontract);
- Are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly).
What employers must do?
Ensure that there is no difference in the way PPE is provided to workers (as defined by PPER 2022). This means assessing the risk and ensuring suitable PPE is provided, when needed, to all those who fall under the definition of ‘worker’.
If a risk assessment indicates that a limb (b) worker requires PPE to safely carry out their work activities, the employer must provide the PPE free of charge as they do for employees.
Where PPE is required, employers must ensure their workers have sufficient information, instruction, and training on the use of PPE. The employer will be responsible for the maintenance, storage, and replacement of any PPE they provide.
What workers must do?
Workers are required to use the PPE properly following training and instruction from the employer. If the PPE provided is lost or becomes defective, it should be reported to the employer.
A limb (b) worker will have the duty to use the PPE in accordance with their training and instruction, and ensure it is returned to the storage area provided by their employer.
PPE as a risk control measure
PPE should be regarded as the last resort to protect against risks to health and safety. Engineering controls and safe working procedures should be considered first.
Control measures should be considered in the following order (the hierarchy of control), with elimination being the most effective and PPE being the least effective:
- Elimination – physically remove the hazard;
- Substitution – replace the hazard with a safer alternative;
- Engineering controls – isolate people from the hazard;
- Administrative controls – change the way people work (e.g. by introducing safe working procedures or training;
- PPE – protect the worker with personal protective equipment.
If you have any questions on any of the issues raised in the above article, please contact Gary Foggo.