Personal Protective Equipment (PPE) Regulations Updated

In early April, changes were made to Personal Protective Equipment (PPE) regulations and how they apply to casual workers.

These new rules come into force when TUC Research shows in the past five years the number of people employed through the ‘gig economy’ has more than quadrupled in delivery/driving jobs and more than doubled in household services and remote online digital tasks.

Why The Change?

Between March and May 2020, the legal department of the Independent Workers’ Union of Great Britain (IWGB) received many queries from their members working in the ‘gig economy’. The queries were from members worried about a lack of Personal Protective Equipment (PPE) and other health and safety issues during the first months of the Covid-19 pandemic.

As a result, the IWGB applied for a High Court judicial review, seeking a declaration that the UK had failed to properly implement two European Union health and safety directives dating back to 1989. These were the Health and Safety Framework Directive (89/391/EEC) and the Personal Protective Equipment Directive (89/656/EEC). The union’s central complaint was that both directives require EU member states to confer protections on ‘workers’, whereas the implementing UK legislation only covers ‘employees’. This left workers in the so-called ‘gig economy’ and precarious employment unprotected. While this alleged gap in protection had existed since the directives were introduced into UK law, the IWGB claimed that the Covid-19 pandemic had given it particular significance.

The court ruled that the directives be extended to casual (referred to as limb (b)) workers. Consequently, earlier this month new rules were introduced, which means employers must ensure casual workers receive the same level of protection as regular employees.

Some Definitions

A Casual Worker

Under section 230(3) of the Employment Rights Act 1996, the definition of a worker in the UK has two limbs:

Limb (a) covers those with a contract of employment. This group are employees under the Health and Safety at Work, etc Act 1974 and are already in the scope of Personal Protective Equipment at Work Regulations (PPER) 1992.

Limb (b) covers casual workers working under a contract for service who were not covered by PPER 1992 but are now covered by PPER 2022.

Casual workers are those who come under limb (b). These workers:

  • Carry out casual or irregular work for one or more organisations
  • Receive holiday pay after 1 month of continuous service, but not other employment rights such as the minimum period of statutory notice
  • Only carry out work if they choose to
  • Have a contract (which does not have to be written) or other arrangement to do work or services personally for a reward and only have a limited right to send someone else to do the work, for example swapping shifts with someone on a pre-approved list (subcontracting)
  • Are not in business for themselves, i.e. they do not advertise services directly to customers who can then book their services directly.

These do not apply to those who have ‘self-employed’ status.

PPE

PPE is defined in the Personal Protective Equipment at Work Regulations (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.’

Where a risk assessment finds that PPE is necessary, an employer has a duty to provide it free of charge.

What This Means For Employers

PPER 1992 placed a duty on every employer in Great Britain to ensure that suitable PPE is provided to ‘employees’ who may be exposed to a risk to their health or safety while at work. PPER 2022 came into force on 6 April 2022 and has extended this duty to limb (b) workers. Consequently, employers should ensure there is no difference in the way they provide PPE to their workers. Employers need to ensure they provide suitable PPE and are responsible for the maintenance, storage and replacement of any PPE they provide. Employers also need to ensure the equipment is used properly by providing training and instruction in its use to all relevant workers and provide the PPE free of charge.

If a company is found in breach of regulations, HSE inspectors have the authority to caution, withdraw approvals, serve notices and, in severe instances, prosecute those that infringe the law.

What This Means For Limb B Workers

If a risk assessment shows that a limb (b) worker requires PPE to carry out their work activities, the employer must carry out a PPE suitability assessment and provide the PPE free of charge as they do for employees.

The worker is required to use the PPE properly following training and instruction from the employer. If they lose the PPE provided or it becomes defective, the worker should report it to the employer.

Use this link to see the Personal Protective Equipment at Work (Amendment) Regulations 2022 amendments in full.

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