Changes are being made to the Personal Protective Equipment at Work Regulations 1992 (PPER 1992) to align with a court judgment which decided that the Government had failed to adequately transpose Article 8(4) and 8(5) of EU Directive 89/391/EEC (“the Framework Directive”) and Article 3 of EU Directive 89/656/EEC of 30 November 1989 (“the Personal Protective Equipment Directive”) into UK law.
The UK implemented the PPE Directive through the Personal Protective Equipment at Work Regulations 1992 (“PPER 1992”) which places duties on employers and employees in regard to PPE.
The duties under the PPER 1992 apply whilst the employee is at work. The employer’s duties include the assessment and provision of PPE (where it is found necessary during a risk assessment), ensuring PPE is suitable for use, the maintenance and replacement of PPE, and other duties around the information, instruction, training, and use of PPE. The employee’s duties under the PPER 1992 are to report loss and defects in the PPE which they are provided, use the PPE in accordance with the training and instruction provided, and to ensure PPE is returned to the accommodation provided by the employer.
The High Court found that the PPE Directive required these duties to be extended to limb (b) workers. Therefore, HSE is making amendments to the PPER in order to align with the court’s judgment.
During the summer of 2021, HSE hosted a formal public consultation on the HSE Consultation Hub on the proposed amendments to the PPER 1992, inviting stakeholders ranging from industrial sectors to businesses and workers and representatives to participate.
The aim of the consultation is to understand the impact (costs and benefits) on stakeholders and businesses of extending the scope of the employers’ and employees’ duties under the PPER to limb (b) workers.
Generally, limb (b) workers:
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).
PPE is defined in the PPER 1992 as “all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects the person against one or more risks to that person’s health or safety, and any addition or accessory designed to meet that objective.”
The duties under the PPER 1992 apply whilst the employee is at work. The employer’s duties include the assessment and provision of PPE free of charge (where it is found necessary during a risk assessment), ensuring PPE is suitable for use, the maintenance and replacement of PPE, and other duties around the information, instruction, training, and use of PPE. The employee’s duties under the PPER 1992 are to report loss and defects in the PPE which they are provided, use the PPE in accordance with the training and instruction provided, and to ensure PPE is returned to the accommodation provided by the employer.
Costs, benefits and wider impacts
The amendments to the PPER 1992 will potentially affect any industry sector in which employers engage limb (b) workers. This includes the transport, construction, health and social care, agriculture and manufacturing sectors, amongst others. The aim of the consultation was to raise awareness and understanding of the proposed amendments as well as to seek the views of stakeholders in order to assess the likely costs, benefits and wider impacts of the amendments. Responses have also been analysed as part of a wider impact assessment to verify data and evidence gathered via an initial YouGov worker survey and social research undertaken by HSE.
The overall response to the consultation was positive, says the HSE, with the majority of respondents stating there will be benefits in amending the current regulations, including enhanced health and safety protections through standardised PPE provision for limb (b) workers.
A small number of concerns were raised during the consultation which included issues in relation to the practical implications of the amendments to the PPER 1992, the risk that the quality and standard of PPE is lowered as more of the workforce will require PPE from employers, and also understanding where PPE duties lie where agencies are supplying temporary workers to businesses. These concerns are addressed in section 7 of this response document.
All respondents were asked if they understand what the amendments to the PPER 1992 will mean for them, their business or their industry. There were 58 responses from a possible 245 responses to this question and the majority of those 58 respondents (82.8%) said they understand the regulations.
Following the consultation and the publication of this summary, the HSE proposes making secondary legislation to make changes to the PPER 1992 in Parliament in early 2022 to ensure limb (b) workers are provided with the same PPE protections as employees.
The HSE’s consultation outcome document is available here.
HSE December 2021