The new Personal Protective Equipment at Work (Amendment) Regulations 2022 (the "2022 Regulations") came into force on 6 April 2022. These extend the protections afforded by the Personal Protective Equipment at Work Regulations 1992 (the "1992 Regulations") to a more workers. Here, we discuss the change and the steps employers can take, to ensure that they are in compliance.
What were the previous requirements in terms of the 1992 Regulations?
The 1992 Regulations provide that all employers must provide suitable PPE to employees who may be exposed to a risk to their health and safety while at work "except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective." In other words, PPE is considered to be a last resort, to protect employees once the risk has been reduced as far as possible by alternative means.
This PPE should be regularly assessed, maintained and replaced (Regs 6 & 7); stored appropriately when not in use (Reg 8); and, where multiple items of PPE are required, they should be compatible and continue to be effective against the risk (Reg 5). Employers must provide training to employees on how to properly utilise PPE (Reg 9); and, must take reasonable steps to ensure that PPE is properly used by employees (Reg 10).
What are the changes under the 2022 Regulations?
The 2022 Regulations extend the protections of the 1992 Regulations to a wider class of workers. They oblige employers to provide PPE not only to employees with a contract of employment but also to those who provide services to a business personally (known as limb (b) workers in terms of s 230 of the Employment Rights Act 1996).
These workers will include those often known as 'gig economy' workers who work for an employer without being formally classed as an employee: including, for example, those on short-term or temporary contracts, or those working as independent contractors. Recent reports have concluded that an estimated 15% of working adults in England & Wales work for gig economy companies,. Accordingly, this change may have a significant impact on the PPE which businesses are obliged to provide.
Why has the law changed?
The High Court's decision in Independent Workers' Union of Great Britain v Secretary of State for Work and Pensions [2020] EWHC 3050 (Admin), concluded that the 1992 Regulations had not fully implemented the underpinning EU Directive due to a lack of protection for limb (b) workers. The change to the Regulations will correct this omission
What steps should employers take?
In order to ensure compliance with the new Regulations, employers should identify whether it has any limb (b) workers within its business. If so it should ensure that those workers are provided with appropriate and adequate PPE.
The impact of this change may be less than the number of limb(b) workers would suggest; an obligation to provide PPE to these individuals, is likely to have already arisen in a range of circumstances, under s 3 of the Health and Safety at Work etc. Act 1974 – which, requires employers to ensure, as far as reasonably practicable, that persons who are not employed by the business are not exposed to risks to their health and safety. This section applies to members of the public, but also to independent contractors, agency workers and self-employed workers. Therefore, PPE may already be being provided in line with the amended regulations; but, it is crucial to review the position, and to make sure that individuals coming under the limb (b) definition are receiving the protection legally required by the 2022 Regulations.
Given that the duty to supply PPE only applies where the risk has not been adequately controlled by other means, employers should continue to consider more widely what other measures could be put in place to minimise risks to employees. It may also be prudent for employers to review risk assessments already in place for tasks that limb (b) workers carry out.
