Last reviewed 25 March 2022

From 6 April 2022, employer and employee duties to provide, maintain, store, and use PPE will not change but are being extended to include limb (b) workers who carry out services in person as part of someone else's business. Interim guidance to the regulation changes is available online. Jon Herbert reports.

The term PPE (personal protective equipment) became part of everyday language during the Covid health crisis but plays a major safety role in many key working environments, including construction.

Good design, proper use, maintenance, and full risk assessments are vital to avoid the creation of further unintended problems. It is also important to remember that in practice PPE may form a barrier against but does not eliminate primary risks. As a last line of defence, PPE should be part of a wider integrated solution.

However, the benefits of correctly-used PPE are now being extended to a wider group of workers at risk via the Personal Protective Equipment Work (Amendment) Regulations 2022 (PPER 2022) which amend PPER 1992.

New guidance

To help companies determine how they may be affected by the changes, the HSE has published interim guidance at www.hse.gov.uk/ppe. Additional basic advice on using PPE at work is also available at www.hse.gov.uk/toolbox.

The changes

The amended regulations will extend both employer and employee duties and responsibilities for personal protective equipment used by limb (b) workers. The basic message is that duties will not change but will be extended. Key points are summarised below.

The term “limb (b) worker” can be understood as a “dependent contractor” — a “worker” registered as self-employed who provides a service as part of someone else's business. Usually, such workers carry out work personally rather than sending someone in their place.

HSE’s guidance is designed to help employers identify whether they and their workforce might be affected by the changes and explains what employers may need to do to prepare. This includes ensuring that workers have sufficient information, instruction, and training in PPE use.

From April onwards, limb (b) workers themselves will have a duty to use the PPE in accordance with their training and instruction and ensure it is returned to storage areas provided by their employers.

As additional help here, further information is available via Personal protective equipment at work (Third edition) and Risk at Work — Personal protective equipment (PPE).

What this means for employers

PPER 1992 puts a duty on all employers to provide suitable PPE to “employees” potentially exposed to a health or safety risks while at work. When PPER 2022 extends this duty on 6 April, employers must consider how they might be affected and make preparations to comply.

If a risk assessment indicates limb (b) workers need PPE to carry out their work, employers must carry out a PPE suitability assessment and provide the PPE free of charge as for other employees.

Employers will also be responsible for the maintenance, storage and replacement of PPE provided. Workers must then use PPE properly and follow training and instructions from employers. If PPE is lost, or becomes defective, workers must report this to their employers.

Definitions of limb (a) and limb (b) workers

For clarity, there are two limbs in the UK, s.230(3) of the Employment Rights Act 1996 definition of a worker.

Limb (a) describes workers with a contract of employment. This group are employees covered under the Health and Safety at Work, etc Act 1974 in PPER 1992.

However, limb (b) describes workers with generally a more casual employment relationship who work under a contract for service and do not come under the scope of PPER 1992.

To redress this, PPER 2022 draws on this definition of worker and captures both employees and limb (b) workers whereby “worker” means:

“… an individual who has entered into or works under:

  • a contract of employment, or

  • 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.”

General duties of limb (b) workers

To be more specific still, in general workers who come under limb (b):

  • “carry out casual or irregular work for one or more organisations

  • after one month of continuous service, receive holiday pay but not other employment rights such as the minimum period of statutory notice

  • 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 only have a limited right to send someone else to do the work, for example swapping shifts with someone on a pre-approved list (subcontracting)

  • are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly).”

Because all employment relationships are specific to an individual and their employer, the precise status of any worker can ultimately only be determined by a court or tribunal.

Self-employed

Importantly, the changes do not apply to those who have a “self-employed” status. More information on Employment Status can be found at www.gov.uk.

The definition of PPE

PPE is defined in PPER 1992 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”.

Where an employer thinks PPE is necessary after a risk assessment, using the hierarchy of controls explained in a moment, they have a duty to provide it free of charge.

Hierarchy of controls

As already mentioned, PPE should be seen as the last resort to protect against health and safety risks. Engineering controls and safe systems of work should be considered first. Of the five shown below, elimination is considered the most effective and PPE the least:

  • Elimination — physically removing the hazard

  • Substitution — replacing the hazard

  • Engineering controls — isolating people from the hazard

  • Administrative controls — changing the way people work

  • PPE — personal protective equipment.

Employers with both employees and limb (b) workers

From April, employers must ensure that there is no difference how PPE is provided to all workers as defined by PPER 2022. That means assessing the risk and providing suitable PPE when needed to all people who fall under the definition of worker. Some employers will only have limb (b) workers.

PPE must then be compatible, maintained and stored correctly. All workers are obliged to use PPE properly as per training and instruction from their employer. If the PPE is lost or becomes defective, workers must report this to employers.

Enforcing the new legislation

Assessing PPE is already included in routine inspections carried out by HSE inspectors. Enforcement action ranges from verbal or written advice to enforcement notices. In the most serious cases, it may lead to the prosecution of dutyholders.

PPE not regulated and enforced under PPER 1992

PPER 1992 is not the only legislation that requires workers to use or wear PPE. For example, crash helmets worn by workers on the road are a legal requirement under road traffic legislation. A full list of PPER 1992 exemptions is shown in “regulation 3”.

Information and guidance pertaining to other circumstances where PPE is needed to reduce risks that are not covered by PPER 1992 can be found at:

Also potential relevant is Health and safety for gig economy, agency and temporary workers — Guidance for employers.

Conclusions

The Government is expanding the scope of responsibilities and duties for both employers and employees with respect to risk assessments and the provision, training, instruction, storage and correct use of PPE (personal protective equipment) from 6 April 2022.

They concern changes that will be introduced by the Personal Protective Equipment Work (Amendment) Regulations 2022 (PPER 2022) which amend PPER 1992.

Specifically, although there will be no change in duties and responsibilities already defined under PPER 1992, they will now be extended to limb (b) workers as defined in PPER 2022.

The amended regulations define self-employed “dependent contractors”, or limb (b) workers who carry out services in person as part of someone else's business.

Interim guidance from HSE can be seen at www.hse.gov.uk.

The changes mean that all workers as defined by the legislation must receive equal provision of PPE. However, the changes do not affect workers with “self-employed” status.