CD289 - Amendments to the Personal Protective Equipment at Work Regulations 1992 consultation

Overview

 The proposed changes to The Personal Protective Equipment at Work 1992 Regulations (PPER)

In November 2020, a court judgment found that the UK had failed to adequately transpose aspects of two EU Directives into domestic law - Article 8(4) and 8(5) of EU Directive 89/391/EEC (“the Health and Safety Framework Directive”) and Article 3 of EU Directive 89/656/EEC (“the PPE Directive”). The UK implementation of these provisions only applied to employees and the court found that the UK’s implementation should extend to limb (b) workers. The government transposed the PPE Directive through the Personal Protective Equipment at Work Regulations 1992. The ‘Related section’ at the bottom of this page has further background information and the definition of a limb (b) worker.

The PPER place a duty on every employer in Great Britain to ensure that suitable personal protective equipment (PPE) is provided to employees who may be exposed to a risk to their health or safety while at work. Currently, employers only have a duty to their ‘employees’ in respect to PPE – changes to the legislation will ensure this duty also extends to ‘limb (b) workers’. Amendments to the PPER will ensure the legislation reflects the court judgment and will apply in England, Scotland and Wales.

PPE is defined in the regulations 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.”

What is a limb (b) worker?

There are two main employment statuses for employment rights: ‘employee’ and ‘worker’. Employees are defined as limb (a) and workers are defined as limb (b) in the Employment Rights Act 1996 s.230:

..an individual who has entered into or works under– (a) a contract of employment; or (b) 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 or any profession or business undertaking carried on by the individual.

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)

Example  of a limb (b) worker

‘Penny’ works casual or irregular hours for ‘Acme Drivers’ as a private hire driver. When Acme Drivers contact Penny about a job, she can refuse to do it if she wants. Generally, she is the only person who can complete the work if she does decide to do it (i.e. she can’t get someone else to drive a customer for her and still get paid herself). The customers pay Acme Drivers, not Penny, for the service. Penny gets the minimum wage and holiday pay (but not other employment rights) from Acme Drivers. Based on this description, Penny is a limb (b) worker, as she is not working for herself (i.e. self-employed), but she is also not an Acme Drivers employee as the work is irregular and she can refuse to do it.

Whilst the changes to PPER will ensure the amending legislation aligns with the court judgment. HSE is seeking the views of consultees on:

• the types of PPE that are used and how often they are replaced
• cleaning, maintenance and storage costs of PPE
• costs of training limb (b) workers to use PPE
• costs of ensuring PPE is properly used
• costs of familiarisation
• the numbers of limb (b) workers likely to be brought into the scope of the PPER as a result of the change,
• whether limb (b) workers tend to supplement work done by employees or tend to do different types of work
• the likely additional costs and wider impacts that may follow as a result of the change

Supporting documents for this consultation including current PPE guidance, a draft Statutory Instrument which details the proposed amendments, and a consultation stage Impact Assessment can be found in the ‘Related’ section. This consultation is not specifically related to the Covid-19 pandemic.

Important information - PPE not regulated and enforced under the PPER

Employees and workers may be required to wear items of PPE under legislation other than the PPER. This includes for example crash helmets worn by employees on the road which is legally required under road traffic legislation.

Specific PPE required and provided for in the below health and safety regulations should also not be considered for the purposes of this consultation:

This is PPE required in relation to:

• lead exposure – Control of lead at work
• ionising radiation – Work with ionising radiation    
• asbestos – Managing and working with asbestos   
• substances hazardous to health in the workplace (for example: chemicals, fumes, dusts, non-water vapours, non-water mists, nanotechnology, and/or gases) – Control of substances hazardous to health
• noise – Controlling noise at work

HSE’s Confidentiality and GDPR statements

HSE tries to make its consultation procedure as thorough and open as possible. A summary of responses to this consultation document will be made available on the consultation webpage after the close of the consultation period where it can be viewed by members of the public.

Information provided in response to this consultation may be subject to publication or disclosure in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the General Data Protection Regulations (GDPR) and the Environmental Information Regulations 2004 (EIR)). Statutory Codes of Practice under the FOIA and EIR also deal with confidentiality obligations, among other things.

If you would like us to treat any of the information you provide as confidential, please make this clear in your response. If we receive a request under FOIA or EIR for the information you have provided, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances.

• An automatic confidentiality disclaimer generated by your IT system will be disregarded for these purposes. Requests for confidentiality should be made explicit within the body of the response.

HSE will process all personal data in accordance with the GDPR. This means that personal data will not normally be disclosed to third parties and any such disclosures will only be made in accordance with the Regulations.

Visit HSE’s Privacy Policy Statement.

How to submit comments

Responses must be received by 11.59pm, Sunday 15^th August 2021. For enquiries please contact ppeconsultation2021@hse.gov.uk.

Comments on the proposed amendments to the PPER should be submitted by using the online survey below, no later than the deadline above.

We will not consider comments if they:

• are submitted after the consultation deadline
• are not related to the contents of the document
• contain complaints against institutions, personal accusations, irrelevant or offensive statements or material
• are related to policy or risk management aspects, which are out of the scope of this consultation