14 April 2022

On 6 April 2022, the Personal Protective Equipment at Work (Amendment) Regulations 2022 (PPER 2022) came into force to amend the scope of the Personal Protective Equipment at Work Regulations 1992 (PPER 1992). As a consequence, employers now owe duties in relation to PPE to categories of workers who have a more casual employment relationship and who work under a contract for services.

Employees and workers are distinguished in the Employment Rights Act 1996 into ‘limb (a)’ employees with a formal contract of employment and ‘limb (b)’ workers who provide services under a different form of contract or work on a more informal basis. Employers now have duties in relation to all workers falling within the following definition in PPER 2022 which covers limb (a) and limb (b) workers:

‘“worker” means ‘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 of any profession or business undertaking carried on by the individual;and any references to a worker’s contract shall be construed accordingly.’

Those workers who have ‘self-employed’ status continue to be excluded.

What are employers required to provide?

Under PPER 1992 and the extended category under PPER 2022, an employer has a duty to provide employees with PPE free of charge if it is found to be necessary following a suitable and sufficient risk assessment. PPE should be regarded as the last resort to protect against risks to health and safety, with engineering controls and safe systems of work considered the primary control measure. 

Employers must continue to ensure that the PPE provided is suitable and compatible with the task, that it is used correctly in line with adequate training and that it is properly stored and maintained.

PPE required to reduce specific risks from issues such as noise, asbestos and substances hazardous to health are regulated and enforced under separate regulations.

Are there any duties on workers?

In line with the existing duty on employees in PPER 1992, those covered by the new Regulations have the same duty to use the PPE in accordance with their training and instruction, and to ensure it is returned to the storage area provided by their employer.

Enforcement

HSE inspectors already include assessment of PPE as part of their routine inspections. Enforcement action can range from verbal or written advice to enforcement notices and, in the most serious cases, prosecution of duty-holders for failures to discharge their legal duty.

BTO’s specialist Regulatory Team can assist you in evaluating your PPE duties and in advising through any HSE investigations.

Lindsay MacNeill, Associate: lmn@bto.co.uk / 0141 221 8012