Last reviewed 1 June 2022

New PPE Regulations extend employers’ duties to “workers”. Barrister Robert Spicer reports on a number of recent cases that demonstrate the difficulty of determining who is a worker.

Personal Protective Equipment at Work (Amendment) Regulations

The Personal Protective Equipment at Work (Amendment) Regulations 2022, which came into force on 6 April 2022, extend employers’ duty to provide free personal protective equipment (PPE) to “workers”.

PPE is defined by 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 and safety, and any addition or accessory designed to meet that objective”.

The new Regulations mean, in summary, that casual workers who do not have a formal contract of employment are now included.

Definition of “worker”

The definition of “worker” is much wider than “employee”. Section 230 of the Employment Rights Act 1996 states the following:

  • A “worker” means an individual who has entered into or works under:

    • a contract of employment, or

    • any other contract, whether express or implied and 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.

Previous cases

A number of recent cases have illustrated the difficulty of deciding who is a “worker” for the purposes of the new Regulations. These include the following.

Waters v The Mote Cricket Club 2300388/2020, Employment Appeal Tribunal

W was associated with The Mote Cricket Club (MCC) as a player, member, committee member and volunteer. From time to time, he worked for the Club on a casual basis. In 2011, W set up his own business which carried out work for the Club. He entered into a contract with the Club to maintain cricket pitches. The contract required W to work personally for 40 hours a week.

W asked the Club to reduce this requirement and to take him on as an employee rather than a contractor. The Club terminated the contract. W brought claims in the Employment Tribunal (ET) for holiday pay, notice pay and unfair dismissal. The ET found that W was not a worker nor an employee and dismissed the claims. W appealed to the Employment Appeal Tribunal (EAT).

The appeal was dismissed.

W was self-employed because the Club was genuinely a customer or a client of W’s business. He was not under any control or supervision as to how and when he performed the work. He was expected to provide his own equipment. The work which he was engaged to carry out for the Club could be incorporated into his business.

Further, W was not incorporated into the Club’s organisation. Although there was a requirement of personal service, W was clearly expected to provide someone else to perform additional work, which W in fact did. There was no evidence that the Club ever checked that W was carrying out the minimum hours. W was able to carry out work for others and wished to reduce his personal commitment to the Club.

Rainford v Dorset Aquatics Ltd EA-2020-000123-BA, Employment Appeal Tribunal

R and his brother B were directors and shareholders of DAL. R held 40% of the shares and B held 60%. R worked for the company but he did not have set hours and was not controlled by B or by the company. R and B agreed that they would be paid an equal salary and also agreed on the amount of dividends which they would receive.

In June 2018, R complained to an ET of unfair dismissal, notice pay, unlawful deductions from wages and unpaid holiday pay. On the issue of R’s employment status, the ET found that he was neither an employee nor a worker. He could provide a substitute to do his work and he could work outside the company. R appealed to the EAT.

The appeal was dismissed. It is open to an ET to take into account the views of the parties in relation to what was agreed between them, and the nature of their relationship. It is not the case that directors/shareholders cannot be employees, but each matter should be decided on its own facts.

Johnson v Transopco UK Ltd EA-2020-000780-AT

J was a full-time self-employed black taxi driver in London. In February 2017, he downloaded Mytaxi, which was T’s App. He used it from July 2017 until April 2018 when he was removed from it. He sourced work away from the App during that period. J brought complaints to the ET which were based on his having been a worker. The ET found that he was not a worker on a number of grounds including that T had been a client or customer of J’s taxi business. The passengers contracted with T as principal. The services were delivered under a separate contract between J and T. J appealed to the EAT.

The appeal was dismissed. The ET had reached a proper conclusion about the nature of J’s business activity. The ET’s approach to the facts in relation to financial risk, control and integration had not been wrong or perverse. The ET had given proper consideration as to whether J was in reality in a dependent or subordinate relationship with T.