New PPE duties from 6 April for gig economy workers

On 6 April new health and safety regulations come into force meaning employers will need to ensure that there is no difference in the way that PPE is provided to different categories of their workers. The current PPE regulations, which date back to 1992, are being amended so that health and safety duties regarding PPE will cover not only employees but also so-called ‘limb (b) workers’. It is a significant change meaning businesses will need to check carefully whether the change applies to them and, if so, make the necessary preparations to comply. So, if a risk assessment indicates that a worker requires PPE to carry out their work activities, then the employer must carry out a PPE suitability assessment and provide the PPE free of charge, just as they do now for employees. 

It is important to understand what we mean by a ‘limb (b)’ worker. The definition of ‘worker’ is set out in section 230(3) of the Employment Rights Act 1996 and it has two limbs: 

Limb (a) describes those with a contract of employment. This group are employees under the Health and Safety at Work etc Act 1974 and they are already covered by current 1992 PPE regulations. Limb (b) describes workers who generally have a more casual employment relationship and work under a contract for service. They don’t currently come under the scope of the 1992 PPE regulations, but that is what’s about to change. The new 2022 PPE regulations draw on this definition of worker and captures both employees and limb (b) workers. 
So let’s hear more about this change and how employers should prepare for it. Zoe Betts is a health and safety specialist and she joined me by video-link to discuss it. I started by asking how the change came about:

Zoe Betts: “It was a legal challenge actually. The Independent Workers Union of Great Britain realised that the UK Government hadn't transposed in full the EU Directive on the health and safety framework and also specifically the PPE directive. So what the union was saying in their High Court challenge was that our domestic legislation, the PPE Regulations 1992, only extended the duty to provide PPE free of charge to employees, and in the UK we define that as people who work under a contract of employment. The European legislation actually covers workers in a much broader sense and it was the decision of the High Court that actually the Independent Workers Union was correct, the challenge was a valid one, the UK hadn't transposed the Directives in full, and the and HSE and the legislators therefore decided that they have no option but to amend the legislation. So the duties haven't changed, but they have extended and they now cover a far broader range of worker.”

Joe Glavina: “Why now, Zoe?  1992 is 30 years ago so what has brought about the need change them now?”

Zoe Betts: “Well, that's a good point it is 30 years ago, you're right 92 to 2022 and I think, to be honest, it was the onset of the pandemic. As with so many things, the pandemic shone a real light on a number of issues and I think it was fair to say that parts of society realised that workers who didn't necessarily have an express contract of employment, who couldn't call themselves an employee in domestic law, didn't have the same protection, and specifically in relation to PPE. So here we're probably talking about the gig economy and there are hundreds of thousands, if not millions, of workers who could be classified as a gig worker, who don't necessarily have a contract of employment, who can pick and choose the work that they do. We're talking about people who often are van drivers, couriers, fast food deliverers. These workers simply didn't have the protection of the PPE regulations and I think COVID-19 showed that it was the lower paid individuals in society who were succumbing to Coronavirus more regularly, and with much more severe consequences. So I think the feeling was we needed to level the playing field, extend the protection, give those workers some equal rights, and that is effectively what these new regulations aim to do.”

Joe Glavina: “So what do you think this means for employers and HR professionals out there?”

Zoe Betts: “I think it means a bit more work. I think it involves some cost. I think, with so many health and safety issues, it means going back to first principles. You need to review your risk assessment for not only at the provision of PPE, because that is actually what we as health and safety professionals call the lowest of a hierarchy of protections. So when you're considering work activity, and control measures that may be needed to reduce risk to workers, you have to first of all consider whether you can eliminate the hazard, whether you can substitute it, whether there's any other way of doing the work method that doesn't involve the hazard and at the end of the hierarchy you get to the provision of PPE, personal protective equipment. This is clothing, generally, which protects workers from the risk associated with that workplace hazard, including the weather. Now, what the new regulations say is that, of course, there are more people now who are deserving of that protection so employers need to revisit their risk assessment, look at their work activities, look at the people who carry out those activities, and if there is a combination of direct employees, and also workers in the broader sense, and we call them limb (b) workers because we're now bringing in limb (b) of section 230(3) of the Employment Rights Act, that's where the definition has come into the new law, it's broadened the category of people. So employers are going to have to provide, free of charge, PPE to employees and workers. What goes along with that are other duties as well. So you've got to make sure that you maintain the PPE, it's got to be suitable in the first place got to be compatible if you're using more than one piece of PPE, it has got to be maintained, cleaned, serviced, if there are defects it has got to be replaced. Likewise, if the PPE is lost it's for the employer, or the host business, to replace it. They've got to store it. So there are a number of different duties are imposed on the employer and clearly that involves a piece of work to determine who falls within the scope of the new law, and then making sure that they receive that PPE free of charge.”

Joe Glavina: “Last question, Zoe. You mentioned ‘limb (b)’ workers. I’ve seen there is potentially an issue with that category of worker. Is that right? How does that arise?

Zoe Betts: “Yes, I think there is potentially an issue and this is the sort of advice that I would be giving clients because most of this, to be honest, is fairly straightforward but there is a little bit of complexity, I feel, and potentially some confusion still over responsibility for the provision of PPE. I foresee that could arise where you have a worker who has actually been contracted by an employment business, an agency, who is then assigned to a host business. So effectively, the main employer has a number of direct employees, but they also have workers within their business carrying out their work activities who've been supplied by an employment business. Now, by the strict letter of the law, if there is a contract of employment then it is the employment business that should provide free of charge, the PPE, but the HSE’s guidance actually goes on to suggest that, in reality, it would be the host business, the main employer, who was carrying out the work activity and who was putting those individuals to work who is in the better place to provide the PPE. On one level that makes sense because they understand what work they're asking people to do, they understand the risks arising from it, and they understand the type and the nature of the PPE that would be needed to guard against those risks, but actually, there isn't that much clarity of responsibility there. On the one hand, it looks like it would be the employer agency who ought to provide the PPE but equally well it probably makes more sense in practice for the host business to do so. So all I would suggest is that there has to be a discussion at the outset, this has to be thought about in advance, there's got to be some proactive decision-making and some cooperation, some communication, to make sure that, in essence, that PPE is provided to the people who need it, free of charge. That is fundamentally the duty. What needs to be determined in that scenario is who provides the PPE? Is it the host business, but then a charge goes back to the employment business, or is it some other arrangement? It has to be satisfactory in the sense that the worker ends up with the correct PPE. What I'm saying is there may need to be some liaison between those two businesses to make sure that they are each discharging their duties appropriately.”

The 2022 amending regulations were laid before parliament on 10 January and will come into force on 6 April. The HSE has published some interim guidance for employers which is now available from the HSE website. We have put a link to that in the transcript of this programme.

LINKS
- Link to HSE’s guidance on PPE