Added protection for workers in the UK to be introduced from April

The Personal Protective Equipment at Work (Amendment) Regulations 2022 (PPER 2022) will come into force in the UK from 6 April 2022, extending the rights under the Personal Protective Equipment at Work Regulations 1992 (PPER 1992) to include limb (b) workers.

As detailed in our Regulatory Outlook, the Personal Protective Equipment at Work Regulations 1992 are being amended and, as of 6 April 2022, employers will need to ensure that all workers, which now includes limb (b) workers, are provided with personal protective equipment (PPE) equipment where necessary. 

Who falls within the scope of the new regulations?

The new regulations replace references to "employee" to "workers", which extends the scope of obligations of employers to those workers who fall under this new definition. This new definition of a worker means anyone that works under:

• a contract of employment; or 
• any 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.

Examples of workers that will fall under this definition include those who carry out casual or irregular work for one or more organisations, such as agency or short-term workers, and those who only carry out work if they choose to.

Employers must be preparing to ensure that all workers are provided with the same PPE. In doing so, organisations should be looking to the type of workers they employ to establish whether they have certain workers that now fall under the scope of the new PPE regulations. If this is the case, then the next step will be to provide these workers with the same PPE that is currently being provided to employees, making sure they are also trained on how to use certain equipment.

Employers that do not have any additional workers who fall under this new definition will not need to make any changes but will need to continue to supply their current workforce with the relevant PPE.

What is PPE and when is it required? 

As outlined on the Health and Safety Executive's website, PPE should be provided to workers as a last resort after other controls are implemented. 

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".

This is a purposely broad description; examples include items such as safety helmets, gloves and eye protection. However, it does not cover all clothing and equipment worn for work. For example, normal work clothing is not PPE, it has to protect against specific risk, such as a high-visibility jacket. Protective clothing worn in food manufacturing primarily for hygiene purposes also does not fall under the PPER. Some PPE is covered by other specific legislation such as crash helmets which are covered by road traffic legislation and any PPE in relation to risks from the following: ionising radiation, asbestos, and substances hazardous to health and noise.

Face coverings, which have previously been required under coronavirus legislation, also do not fall under the PPER.

Even before the PPER changes, employers already have a duty to manage health and safety risks to those not in their employment created by their work activities. This could include the provision of PPE at a workplace. However, the changes make this requirement more specific and enforceable.

Can workers supply their own safety equipment?

Regulation 4 of the PPER 1992 provides that "every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective." The accompanying guidance reiterates that PPE should be provided by employers where health and safety risks cannot be controlled by other means.

Therefore, if PPE is needed to reduce risks within workplace, then it is the employer's duty to provide the necessary PPE and ensure it is sufficient in reducing the risks that the worker is being exposed to. As well as providing the equipment, employers need to ensure the PPE is compatible, maintained, correctly stored and used properly by the workers. This is not a duty that can be passed to the employee or worker.

Can an employer charge for PPE or make it a condition of the contract?

Provision of PPE by the employer must be made free of charge. An employer cannot require an employee or worker to self-supply PPE before they start the work. It is the employer's responsibility. 

How should you administer PPE so it isn’t a huge cost for your business?

This legislative change does mean that businesses that employ workers, who now fall under the new definition of "worker", will incur extra costs; in particular, buying and providing additional PPE to more workers. There are also other costs to consider such as maintaining the equipment and providing training to workers so they are using the equipment correctly.

It is an apposite time to consider whether the risk can be controlled in another way, such as a change in methodology, rather than by the provision of PPE. Employers should also be reviewing what PPE is required for their workers and how much PPE is needed to supply the whole workforce.

One option is to make PPE personal issue after a certain period. Providing a degree of responsibility for PPE can help to ensure that it is cared for and maintained.

Even though these extra costs may at first be seen as a disadvantage, the HSE found from their consultation response that two in three employers believe that these changes will increase productivity and safety amongst workers, good health and safety and good performance often go hand in hand.

OC comment

Employers should familiarise themselves with these upcoming changes and consider what they need to be doing in order to comply with the new regulations from 6 April 2022.

Any change to health and safety legislation invariably brings a new focus on the issue. Employers will have to review their supply of PPE, its adequacy and crucially that it is being used and used properly if they are to be compliant with their obligations.

Charlie Hennig co-authored this article.