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27 January 2022

Employers must provide same level of protection to all workers under amended PPE regulations

Employers must provide same level of protection to all workers under amended PPE regulations

Employers in Great Britain need to ensure they are ready to provide the same level of protection to workers who carry out casual work as employees who have a contract of employment when amended personal protective equipment (PPE) regulations come into force on 6 April.

The Personal Protective Equipment at Work (Amendment) Regulations 2022 (PPER 2022) extend employers’ and employees’ duties, which remain unchanged, to limb (b) workers and increase the coverage of people carrying out work activities that must be protected under the new rules.

Section 230(3) of the UK’s Employment Rights Act 1996 describes limb (b) workers as individuals ‘who generally have a more casual employment relationship and work under a contract for service.’ Until now, they have not been covered under the PPER 1992 regulations.

The amended OSH rules will have significant implications for employers across a wide range of industries regardless of whether their workforce is a combination of employees and casual workers or is only comprised of workers that carry out activities on a casual or irregular basis.

Under the amended rules, an employer that uses both employment types must now ensure that there is no difference in the way PPE is provided to workers, as defined by the amended regulations.

As Great Britain’s Health and Safety Executive (HSE) notes, ‘This means assessing the risk and ensuring suitable PPE is provided, when needed, to all people that fall under the definition of worker.’

The employer, regardless of whether they use both employment types or not, must also ensure that everyone undertaking work activities is provided with training and instruction so they know how to use the PPE properly.

Under regulation 11 of the PPER 1992, employees are required to report any supplied PPE that is subsequently lost or becomes defective to the employer. Under the new rules, this requirement has been extended to limb (b) workers.

For businesses that are entirely reliant on casual workers, there will be a significant cost implication as they are now required to provide all PPE free of charge.

IOSH has welcomed the amendment as it affords all workers, regardless of their employment type, the same protection for the tasks they complete.

However, in its response to the HSE’s consultation on the forthcoming PPE amendments last summer, IOSH did highlight the challenges that the new rules would pose for managers, including the short time-frame proposed to implement the requirements, as well as ensuring that employers would be ready to carry out the required risk assessments for all workers and training on PPE use by the enforcement deadline.

In its response, IOSH noted that important PPE controls such as face-fit testing of limb (b) workers undertaking irregular hours could present an issue to employers, due to the practicalities of them attending site at a particular time.

‘The requirements for the provision [of ppe] should be as an outcome of the risk assessment for the task, and the issuing of the protection should not be led by the type of worker they are classed as’

Limb (b) workers would use PPE less often than full-time employees, meaning that they would get less use out of PPE with an expiry date before it needs replacing.

The professional body also raised the issue of cost for organisations that employ or may choose to employ casual workers. IOSH noted that although the relative cost of purchasing PPE per worker, which on average is around £284 per year, was reasonable for higher hazard or specialised industries, for some (smaller) organisations, it wasn’t.

‘The focus should be on protection and risk management,’ IOSH said in its response. ‘The requirements for the provision [of PPE] should be as an outcome of the risk assessment for the task, and the issuing of the protection should not be led by the type of worker they are classed as.

‘This will bring organisational benefits in relation to reputation for equality, diversity and fairness, making it more attractive for prospective workers, who might appreciate working more flexibly, but not wanting their safety compromised.’

The decision to extend protection to workers who carry out casual or irregular work was prompted by a High Court judgment in November 2020 that concluded that the UK had failed to adequately transpose aspects of two EU Directives into UK law – Article 8(4) and 8(5) of the EU Directive 89/656/EEC. The court’s ruling said the UK implementation of these provisions should extend to limb (b) workers.

The HSE ran a four-week public consultation last year to raise awareness of the coming changes to the PPER 1992 regulations and to ‘gain an insight into the potential costs’ arising from the amendments.

The reason for the shorter than normal consultation period was that the Secretary of State for the Department of Work and Pensions had already agreed the amendments to the PPER 1992, to align it with the court’s judgment and to provide clarity for workers and employers. The PPER amendments will apply to England, Scotland and Wales.

In its announcement last week, the HSE has also reminded employers that the changes to the PPER 2022 does not apply to all risks, for example, lead exposure and asbestos. In these circumstances separate regulations will apply to managing the risks and how they will be enforced.

Ruth Wilkinson, head of health and safety at IOSH, said: ‘Even though PPE is considered the last resort for control measures, after all other controls are considered, IOSH would welcome the change to the PPE regulations, meaning that all workers, regardless of their contract with their employer, has the same rights and forms of protection while at work.’

Source: IOSH Magazine

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