New PPE Regulations to extend duties

What’s coming?

On the 6th of April 2022 new Regulations, The Personal Protective Equipment at Work (Amendment) Regulations 2022, come into force. They amend The Personal Protective Equipment at Work Regulations 1992.

What’s changing?

Employers always had duties regarding PPE under the 1992 Regulations for their employees, but the 2022 Regulations extend those duties to cover what are referred to as ‘limb (b) workers’. So while there aren’t changes to an employer’s duties as such, they are being expanded to cover a broader group of workers.

It is important to remember employer duties not only cover the provision of suitable PPE (at no cost), but include risk assessment, information, instruction and training, cleaning, maintenance and storage.

Naturally, limb (b) worker will have duties to use PPE properly, as instructed, and to report issues (loss, faults etc.).

What is a limb (b) worker?

The term ‘Worker’ is defined in Section 230(3) Employment Rights Act 1996.

• A limb (a) worker is a worker under a contract of employment. Limb (a) workers were already in scope of the 1992 Regulations.
• A limb (b) worker is a worker who has a casual employment relationship with an employer who work under any other contract, like a contract to provide work or services. Specifically:

‘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 of any profession or business undertaking carried on by the individual.’

The Health and Safety Executive’s (HSE) consultation response for the proposed amendments to the 1992 Regulations say that limb (b) workers are generally those that:

• Carry out casual or irregular work for one or a number of organisation(s).
• Receive holiday pay, but not other employment rights such as the minimum period of statutory notice, after one month of continuous service.
• 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 they only have a limited right to send someone else to do the work, for example, swapping shifts with someone on a pre-approved list (subcontract).
• Are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly).

The consultation also sought to find out the type of work limb (b) workers did. The responses showed the majority did skilled manual work (plumbing, building, electrics, carpentry etc.), but also office based work (data entry, graphic design, consultancy legal, accountancy etc.), personal services (cleaning, moving, and DIY tasks), teaching/education, delivery or courier services, health and fitness, and driving or taxi services (like Uber etc.).

What about agency workers?

The HSE’s consultation response documents wider concerns/issues raised during the consultation, including the responsibilities of agencies versus employers in relation to PPE, specifically where limb (b) workers are recruited by employment businesses on behalf of businesses.

The HSE states that ‘if a limb (b) worker is a temporary worker that has a contract with an employment business, this indicates the employment relationship is between the employment business and the limb (b) worker. In these circumstances, the employment business will be responsible for provision of PPE free of charge.’

However, the HSE goes on to say ‘It is likely that in practice the end user business is in the best position to manage the provision of PPE as they will direct the work and control the premises where it takes place and is responsible for health and safety while the work-seeker is on assignment. Communication and cooperation between the employment business and the end user business will therefore be key to ensure limb (b) workers are provided PPE free of charge.’

What should an employer do?

Plan for the changes that are due on the 6th of April 2022. For example:

• Read the HSE’s guidance on PPE at work and the HSE consultation document.
• Review who your workers are and their employment status. Seek help from your HR department if necessary.
• Review your risk assessments to document who needs PPE.
• Speak with your agency staff suppliers (see above section ‘What about agency workers?’) to coordinate and plan for PPE provision.
• Plan what you need to do next, such as purchase PPE, communicate and train workers, and provide cleaning materials and storage.
• Monitor and supervise changes you make to ensure they are effective.