HSE – Proposed Changes To The Personal Protective Equipment At Work 1992 Regulations (PPER)
In November 2020, a court judgment found that the UK had failed to adequately transpose aspects of two EU Directives into UK domestic law – Article 8(4) and 8(5) of EU Directive 89/391/EEC (“the Health and Safety Framework Directive”) and Article 3 of EU Directive 89/656/EEC (“the PPE Directive”). The UK implementation of these provisions only applied to employees and the court found that the UK’s implementation should extend to limb (b) workers. The Government transposed the PPE Directive through the Personal Protective Equipment at Work Regulations 1992.
The PPE Regulations place a duty on every employer in Great Britain to ensure that suitable personal protective equipment (PPE) is provided to employees who may be exposed to a risk to their health or safety while at work. Currently, employers only have a duty to their ‘employees’ in respect to PPE – changes to the legislation will ensure this duty also extends to ‘limb (b) workers’. Amendments to the PPER will ensure the legislation reflects the court judgment and will apply in England, Scotland and Wales.
PPE is defined in the regulations 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.”
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.
An individual who has entered into or works under– (a) a contract of employment; or (b) 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 or any profession or business undertaking carried on by the individual.
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).
Example of a limb (b) worker
‘Penny’ works casual or irregular hours for ‘Acme Drivers’ as a private hire driver. When Acme Drivers contact Penny about a job, she can refuse to do it if she wants. Generally, she is the only person who can complete the work if she does decide to do it (i.e., she can’t get someone else to drive a customer for her and still get paid herself). The customers pay Acme Drivers, not Penny, for the service. Penny gets the minimum wage and holiday pay (but not other employment rights) from Acme Drivers. Based on this description, Penny is a limb (b) worker, as she is not working for herself (i.e., self-employed), but she is also not an Acme Drivers employee as the work is irregular and she can refuse to do it.
Publication of Consultation Response on amendments to the Personal Protective Equipment at Work Regulations 1992 (“the PPER 1992”)
Following the consultation, changes are being made to the PPER 1992 to align with a court judgment which decided that the Government had failed to adequately transpose Article 8(4) and 8(5) of EU Directive 89/391/EEC (“the Framework Directive”) and Article 3 of EU Directive 89/656/EEC of 30 November 1989 (“the Personal Protective Equipment Directive”) into UK law.
The UK implemented the PPE Directive through the Personal Protective Equipment at Work Regulations 1992 (“PPER 1992”) which places duties on employers and employees in regard to PPE.
The duties under the PPER 1992 apply whilst the employee is at work. The employer’s duties include the assessment and provision of PPE (where it is found necessary during a risk assessment), ensuring PPE is suitable for use, the maintenance and replacement of PPE, and other duties around the information, instruction, training, and use of PPE. The employee’s duties under the PPER 1992 are to report loss and defects in the PPE which they are provided, use the PPE in accordance with the training and instruction provided, and to ensure PPE is returned to the accommodation provided by the employer.
The High Court found that the PPE Directive required these duties to be extended to limb (b) workers. Therefore, HSE is making amendments to the PPER in order to align with the court’s judgment.
During the summer of 2021, HSE hosted a formal public consultation on the HSE Consultation Hub on the proposed amendments to the PPER 1992, inviting stakeholders to participate. The HSE has now published its consultation outcome (copy attached).
HSE currently plan to introduce the amending regulations in early 2022 and expect the regulations to come into force on 6 April 2022. HSE will also publish updated guidance to support businesses that are impacted by the changes and ensure workers are aware of their extended rights in respect of PPE in the workplace.
National Health, Safety & Environment Officer