New legislation | Personal Protective Equipment (PPE)

There are new changes to the laws that govern Personal Protective Equipment (PPE).

In short, these new rules extend an employer’s duties when it comes to PPE. Read on to find out what’s changed, when it’s effective, and what employer’s need to do to stay compliant with this change to HSE regulations.

New PPE legislation, what’s changed?

The Personal Protective Equipment at Work Regulations date back to 1992. They were introduced as part of the 6 Pack Regulation written to implement EU directives aimed at standardising H&S legislation and enforcing them across the European Union.

The amendment to the Personal Protective Equipment at Work Regulations extends the duties of both employers and employees in respect of PPE.

The extended provision now includes a wider group of workers, who have more casual employment relationships than employees. These people were not specifically covered by the original legislation.

When is this new legislation effective from?

The amendments to the 1992 Regulations came into force on 6 April 2022.

Why has this amendment been introduced?

Readers may be surprised to learn that UK H&S legislation has no clear definition for ‘worker’ and refers to Employee. Although Section 3 of the Health and Safety at Work Act does require employers to protect the Health Safety and Welfare of none-employees, amongst others there is no specific references to workers who may not be directly employed.

The worker is defined in section 230(3) Employment Rights Act 1996. The definition has two limbs, limb (a) and limb (b).

• Workers falling into the limb (a) categories are deemed to be employees and are therefore covered under the Health and Safety at Work Act 19744 (“HSWA”) and subsidiary legislation made under the Act. Therefore these workers are already covered in scope of the PPER 1992.
• However, limb (b) workers are not automatically covered, as this limb captures those who generally have a more casual employment.

The amendment creates its own definition of worker intended to capture both of these Groups and comes about following a judicial review brought by the Independent Workers’ Union for Great Britain against the Secretaries of State for the Department for Work and Pensions and the Department for Business, Energy and Industrial Strategy where the Health and Safety Executive was an Interested Party.

The High Court found the UK had failed to fully implement two EU Directives, the Health and Safety Framework Directive (89/391/EEC) and the Personal Protective Equipment Directive7 (89/656/EEC), in domestic law, as protections were only applied to employees.

The Court held they should also extend to limb (b) workers, who tend to have a more casual employment relationship and are entitled to a basic set of rights.

Therefore these amendments are in response to the judgment and apply to regulations 4 to 11 of the Personal Protective Equipment at Work Regulations 1992 (“the PPER 1992”) to extend the employers’ and employee’s duties in respect of personal protective equipment (“PPE”) to limb (b) workers.

The Employment Rights Act 1996 (Protection from Detriment in Health and Safety cases) (Amendment) Order 20218 came into force on 31st May 2021 in order to address the court judgment in relation to the Health and Safety Framework Directive (89/391/EEC).

How does this change affect businesses and what do they need to do to be compliant?

The impact assessment predicts a cost increase of £43.2 million per year for business, charities or voluntary bodies. This cost is made up of the average cost of PPE, familiarisation, cleaning, storage, maintenance and training costs.

That said Moorepay do not expect these changes to have a dramatic effect on the majority of businesses who base their management of Health and Safety on the moral duty to protect workers. These employers will already provide PPE to their workers covered by this extension of their legal duty.

However, it would be prudent for businesses that employ, or are concerned they may employ, workers that fall into the limb (b) categorisation to check contractual arrangements and ensure the assessment, suitability and provision of PPE for this group of workers is in line with the extended duties.

Limb (b) workers also now have duties under the regulations. The following existing obligations and requirements on employers and employees under the PPER 1992 will be extended to limb (b) workers:

• Regulation 4 requires an employer to provide suitable personal protective equipment (“PPE”) to an employee where risks to the employee’s health and safety cannot be controlled by other means.
• Regulation 5 requires an employer to ensure that where two (or more) pieces of PPE are worn simultaneously, they are compatible with each other.
• Regulation 6 specifies that before choosing any PPE an employer is required to make an assessment to determine whether the PPE they intend to provide will be suitable.
• Regulation 7 requires employers to ensure that any PPE provided to their employees is maintained, or cleaned/replaced, as needed.
• Regulation 8 requires an employer to ensure appropriate accommodation is provided for the when it is not being used.
• Regulation 9 requires employers to ensure that suitable information, instruction and training is provided to their employees who are required to wear PPE.
• Regulation 10 requires employers to take all reasonable steps to ensure the PPE they provide is properly used. Employees are required to ensure the PPE they are provide is used in accordance with the training and instructions they are given, and take reasonable steps to ensure the PPE is returned to the accommodation after use.
• Regulation 11 requires employees to report the loss or defect of PPE that has been provided to them.

What support can Moorepay offer?

As your HR and H&S Consultants, we’re ideally placed to help determine the status of any workers who may now be covered by the amended legislation and suggest specific courses of action to protect workers, businesses and business owners. If you’re a customer of ours and would like some support, please give us a call.