January 18, 2022
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In July and August 2021, the HSE ran a consultation on proposals to extend the definition of workers that employers are required to provide with suitable personal protective equipment (PPE). Currently under the ‘Personal Protective Equipment at Work Regulations 1992’ employers have a duty to provide suitable PPE to their employees who may be exposed to a risk to their health or safety while at work, unless the risk is already adequately controlled by other means which are equally or more effective.

Section.230 of the Employment Rights Act 1996, identifies two types of workers for employment rights purposes. An “employee” is defined as an individual who has entered into or works under a contract of employment. In addition there are workers who are not employees who work under “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.” These are often referred to as “Limb (b) workers” (from this part of the section in the regulations).

With the growth of the “gig economy” and increasing numbers of people working on flexible short term contracts, there has been increasing debate over whether such workers are adequately protected by existing regulations and who qualifies as an employee. In November 2020 the High Court decided that by only including “employees” in the Personal Protective Equipment at Work Regulations the Government had not correctly implemented the provisions of the relevant EU directives and that the regulation required amending.

The HSE have now published the results of their consultation into the proposed changes to the regulations. While the public comments were broadly in favour, some concerns were raised and the HSE’s response to these concerns is included in the document which can be found at: https://consultations.hse.gov.uk/hse/cd289-amends-ppe-work-regs-1992/

HSE have announced that they will be introducing new regulations early in 2022, with a view to them coming into force on 6th April 2022.

Once the legislation is amended, Employers will have a similar duty to provide “limb (b) workers” with the same health and safety protections in respect of PPE as they currently do for “employees”. Employers who use such workers should review their policies regarding the provision of PPE.

Please speak to your normal PIB Risk Management contact or get in touch using [email protected] if you have any questions or would like assistance with managing planning for this change.