• Keeley Harrison

PPE regulations extended to cover workers and employees



If your workforce carries out tasks that require personal protective equipment (PPE), then you need to know about new regulations coming into force from 6th April.


rradar solicitor Keeley Harrison looks at what the new regulations say.


Why is this happening?


Under the Personal Protective Equipment at Work Regulations 1992, employers are required to make sure that PPE is provided to employees who may face risks to their health and safety while they are working.

However, during the COVID-19 pandemic, people carrying out essential tasks such as delivery who were not classed as employees but instead were counted as workers found that their calls for adequate PPE to protect them from the risk of infection were not backed up by law, putting them in danger for doing their jobs.

Our blog post at the time covered this in detail

https://www.rradar.com/post/a-change-in-law-for-the-health-and-safety-for-gig-economy-workers


As a result, the regulations have now been amended to include workers. This amendment will be called The Personal Protective Equipment at Work (Amendment) Regulations 2022 (PPER 2022)


What is PPE?


PPE, or Personal Protective Equipment, is defined in the 1992 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 do employers need to know?


If you are an employer with workers who carry out tasks that require PPE, you will need to think carefully about what the new regulations require you to do. You still have time to prepare but we suggest you start as soon as possible to ensure that you’re fully compliant by the start date for the Regulations.

One of the key foundations of a safe working environment is the risk assessment. If you have carried this out and it indicates that PPE is required, you will then need to do a suitability assessment and provide it free of charge, just as you currently do for employees. Under the regulations, you will be responsible for maintenance, storage and replacement of any PPE you provide. You will also need to make sure that workers have received training in how to use it correctly.

Workers who are provided with PPE must report any loss of, or defect with, the equipment, use it in accordance with training provided and make sure that it’s put back into storage after use.


What is a worker?


Under Section 230(3)(b) of the Employment Rights Act, 1996, workers are divided into two groups.


The first group comprises those with a contract of employment. This group are employees under the Health and Safety at Work etc Act 1974 and are already covered by the original 1992 PPE regulations.


The second group are those who have a more casual employment relationship and work under a contract for service. Hitherto, they haven’t been covered by the regulations. It’s this second group that we are referring to when discussing the new regulations.


Workers, for the purposes of the regulations, are defined as those who:

· carry out casual or irregular work for one or more organisations

· after 1 month of continuous service, receive holiday pay but not other employment rights such as the minimum period of statutory notice

· 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 only have a limited right to send someone else to do the work, for example swapping shifts with someone on a pre-approved list (subcontracting)

· are not in business for themselves (they do not advertise services directly to customers who can then book their services directly)


However, it’s worth noting that there have been several court and tribunal cases in the past few years which have examined worker/employee status on a case-by-case basis. The exact outcome of each case has depended on individual circumstances, so if you are unsure about the status of any worker, check with your legal adviser – better safe than sorry.


Action the HSE can take


When carrying out routine inspections, HSE inspectors already include assessment of PPE provision and condition. When carrying out enforcement action for breaches of regulations, the HSE can issue verbal or written advice, prohibition and enforcement notices and, if the case is particularly serious, prosecution of employers.