New Personal Protective Equipment Duties to Note

The Personal Protective Equipment at Work Regulations 1992 (the “1992 Regulations”) impose a requirement upon employers in Great Britain to provide personal protective equipment (PPE) to those with a contract of employment who may be exposed to a risk to their health or safety whilst at work. This duty, however, is soon to be extended pursuant to the Personal Protective Equipment at Work (Amendment) Regulations 2022.

The new regulations come into force on 6 April 2022. At this point, the current duty to provide PPE to those with a contract of employment will extend to workers with a more casual employment relationship who are assessed to require PPE to carry out their work activities. The regulations set out that this includes any individual who has entered into or works under:

“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”.

This may consequently include workers such as those who carry out casual, agency, or irregular work for one or more organisations and those who only carry out work where they choose to.

These changes come after a High Court judgement in November 2020 ruled that the UK had failed to implement two EU Directives into domestic UK law, with protections only applying to employees and not to other workers as required.

Importantly, however, the 1992 Regulations still apply, and PPE should consequently only be provided where risks cannot be adequately controlled by other “equally or more effective means”, and the Health and Safety Executive (HSE) has also stressed that PPE should be a last resort, with engineering controls and safe systems of work considered first.

Furthermore, employers should note that they are responsible for the maintenance, storage, and replacement of any PPE they provide, which must be given to employees and workers free of charge, along with sufficient information, instruction, and training on PPE usage.

Guidance on these changes released by the HSE is available here, and HSE inspectors already routinely assess compliance with PPE legislation, with enforcement action ranging from advice to, in more serious cases, formal prosecution. The precise status of any worker can also be determined by a court or tribunal. Employers would therefore be prudent to carefully consider whether these changes will affect them and their workforce, making preparations to ensure that their business is compliant by 6 April 2022 if so affected.

If you need any assistance in relation to the above, please do not hesitate to contact Lukas Rootman or Kaleem Mahmood.

Co-authored by Jennifer Wilson