August 5, 2021
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The Personal Protective Equipment at Work Regulations 1992 implemented an EU directive into UK law. These regulations place duties on employers with regard to protecting their employees, for example a duty to ensure that suitable personal protective equipment is provided 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.

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. This can be further complicated where UK regulations are derived from EU directives if there are different interpretations of who is meant to be covered by the directive.

All employees are workers but not all workers are employees

Under section.230 of the Employment Rights Act 1996, two types of workers are identified 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).

Following a case brought by the Independent Workers Union of Great Britain, 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.

Following on from the decision in this case the HSE is launching a consultation on proposals to update these regulations to also include “Limb (b) workers”. The consultation runs for four weeks from 19th July and can be accessed on the HSE’s consultation website at: https://consultations.hse.gov.uk/

What does this mean?

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.