UK firms face increased costs with expanded PPE obligations for gig workers

Current regulations in Great Britain already impose a general duty on employers to ensure that suitable PPE is provided free of charge to staff who work under a contract of employment. In cases where these employees could be exposed to a risk to their health or safety – and where the risk cannot be adequately controlled using other reasonably practicable measures – employers must provide them with suitable PPE.

But amendments to the 1992 PPE Regulations, laid before parliament on 10 January 2022 and set to come into force on 6 April, will incorporate the definition of a “worker” as set out in the 1996 Employment Rights Act. The Act describes a worker as an individual who has “entered into or works under a contract of employment or 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.”

This means that employer’s PPE obligations will soon extend beyond contracted employees to include ‘limb (b)’ workers, including those known as ‘gig’ workers. Couriers and food delivery riders are often classed as gig workers - along with some taxi, private hire, bus, coach and van drivers - since they are not obliged to take every job that is offered to them. Workers usually receive the minimum wage and holiday pay, but not other employment rights.

The changes will require employers in England, Wales and Scotland to provide suitable PPE free of charge to workers as well as employees where it is found to be necessary following a risk assessment process. The existing employer duties to ensure PPE is properly maintained and replaced, and that staff are properly trained in how to use it, will also be extended to include these workers. The amended law also imposes duties on workers to use PPE properly and in accordance with the training and instruction they are given. They must ensure it is returned to the storage area provided by their employer or the host business that provided the PPE to them and report the loss of the equipment or any defects with it.

The gap in protection between employees and workers has actually existed for nearly 30 years – since the deadline to transpose the European Union’s health and safety directives into law in Great Britain lapsed on 31 December 1992 - but the issue was brought into sharp focus by the pandemic. Work carried out by the Independent Workers’ Union of Great Britain (IWGB) highlighted higher-than-average death rates from Covid-19 among the lower paid and gig economy workers that it represented.

The union went to the High Court to highlight the particular needs of such workers and argued that current PPE regulations in England, Wales and Scotland had failed to properly implement elements of the EU’s health and safety directives three decades ago. In judicial review proceedings last year, the High Court agreed with IWGB. It found that, while the EU directives provided various protections for ‘workers’, the PPE Regulations that were eventually implemented in England, Wales and Scotland in 1992 only protected ‘employees’. The court said that the discrepancy had left gig workers in Great Britain without the protection that EU law guaranteed.

While the ruling only applied to the law in Great Britain, it is likely that similar steps will be taken to amend PPE legislation in Northern Ireland. As with the PPE Regulations in England, Wales and Scotland, the equivalent legislation in Northern Ireland also does not currently require employers to provide limb (b) workers with PPE.

The High Court in the IWGB case was at pains to stress that it was not ruling on obligations in individual cases. But its decision extends health and safety protections to an enormous range of individuals - estimates suggest that more than seven million people in the UK are likely to work in the gig economy in 2022.

As a result, the new regulations are likely to have significant knock-on effects on costs and resourcing for certain employers. Firms in England, Wales and Scotland will need to look carefully at their approach to staff engagement to ensure those falling within the definition of limb (b) workers are included in the provision of suitable PPE.

The Health and Safety Executive (HSE) has published interim guidance to help employers identify whether they and their workforce may be impacted by the changes and to explain what firms should do to prepare. The HSE also points out that not all PPE is regulated by the PPE Regulations. Crash helmets worn by workers on the road, for example, are legally required under separate road traffic legislation. Similarly, PPE required to guard against risks arising from lead exposure, ionising radiation, asbestos, noise and some hazardous substances is regulated and enforced under different rules.

Employers should now carefully consider the ways in which their business model may be affected and take steps to ensure they will be able to meet the new requirements. Early dialogue with staffing agencies, for example, may be wise in order to clearly define the obligations to provide and pay for PPE needed by agency workers.  Failure to do so could result in HSE enforcement action, including criminal prosecution of the dutyholder.