On 6 April 2022 the Personal Protective Equipment at Work (Amendment) Regulations 2022 come into force in Great Britain and extend employers’ and other organisations’ duties, so that they are now required to provide PPE to workers as well as employees. The duties and obligations for employers and employees in respect of PPE remain the same as before, but have been extended in terms of who they protect, so that there is now an obligation to provide PPE to all workers (including casual workers), rather than employees only from this date.
These new Regulations were introduced following a High Court judgement in November 2020 which ruled that the UK had failed to implement two EU Directives into domestic UK law, with protections previously only applying to employees and not to other workers as required under the terms of the EU Directives.
While employers have been required to supply PPE for their employees for some time, this will be the first time they have had to do this for those working under a contract for service, who also meet the legal definition of ‘worker’.
What is the difference between a ‘worker’ and an ‘employee’ under UK law?
Employees are those who are employed under a contract of employment (either a verbal or written contract). Workers (as opposed to those who are genuinely self-employed) only have a limited right to send someone else to do the work, for example, by swapping shifts with someone on a pre-approved list and are entitled to certain statutory worker protections (rather than full employment rights), such as rest breaks, holiday pay and statutory sick pay. Those who are genuinely self-employed remain responsible in law for providing their own PPE at their own cost and there is no change to this. Guidance on employment status can be found on the gov.uk website in the following link: https://www.gov.uk/employment-status
What are employers’ and employees’ obligations in relation to PPE?
These new Regulations mean that by 6 April, employers will need to assess the risk and ensure suitable PPE is provided free of charge, when needed, to all people that fall under the definition of worker (as well as those they hire as employees). If PPE is required, employers must ensure their workers have sufficient information, instruction and training on the use of PPE.
Under the Regulations, workers have legal responsibilities in respect of PPE too. Workers who are provided with PPE must use the PPE provided and are required to use it in accordance with the training and instruction given to them. They must also ensure it is returned to the storage area provided by their employer. If the PPE provided is lost or becomes defective, they must be report this to their employer.
It must be remembered that the provision and use of PPE is not a substitute for managing risks by other means. PPE should be regarded as the last resort to protect against risks to health and safety. Engineering controls and safe systems of work should be considered first under the employer’s risk assessment.
HSE inspectors already include assessment of PPE as part of their routine inspections. Enforcement action can range from verbal or written advice to enforcement notices and, in the most serious cases, prosecution of dutyholders.