PPE Duty amendment (Britain)

The HSE has today (19th July) launched a consultation here, on proposed changes to the Personal Protective Equipment at Work Regulations 1992 (PPER). Consultation closes on 15th August.

Currently, employers have a duty to their ‘employees’ in respect to PPE – changes to the PPER will ensure this duty also extends to ‘limb (b) workers’, and will apply in England, Scotland and Wales.

In the PPER, PPE is defined 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.”

This Blog does not extend to employment law, but note in Britain there are two main employment statuses for employment rights: ‘employee’ and ‘worker’. Employees are defined as limb (a) and workers are defined as limb (b) in the Employment Rights Act 1996 s.230: [we do not supply the ERA or advise on it]

..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 or any profession or business undertaking carried on by the individual. [my bold]

According to the HSE consultation document – Generally, limb (b) workers:

• carry out casual or irregular work for one or a number of organisation(s),

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

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

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

Specific PPE required and provided for in the below health and safety regulations is not part of this HSE consultation – PPE required in relation to:

• lead exposure – Control of lead at work

• ionising radiation – Work with ionising radiation    

• asbestos – Managing and working with asbestos   

• substances hazardous to health in the workplace (for example: chemicals, fumes, dusts, non-water vapours, non-water mists, nanotechnology, and/or gases) – Control of substances hazardous to health

• noise – Controlling noise at work

Personal Protective Equipment (EU)

Existing PPE Directive 89/686/EEC covers the manufacture and marketing of personal protective equipment. It defines legal obligations to ensure that PPE on the European market provides the highest level of protection against hazards. The CE marking affixed to PPE provides evidence of this protection. Manufacturers or their authorised representative in the EU comply with the technical requirements directly or with European Harmonised Standards. The latter provides a presumption of conformity to the essential health and safety requirements.

Applicable 21 April 2018, Directive 89/686/EEC is repealed by the new Regulation (EU) 2016/425 of the European Parliament and of the Council of 9 March 2016 on personal protective equipment – here.

The new PPE Regulation is aligned to the EU’s New Legislative Framework policy. In addition, it slightly modifies the scope (enlarged to include PPE designed and manufactured for private use to protect against heat) and the risk categorisation of products. It also clarifies the documentary obligations of economic operators.

As a European Regulation (not a Directive) it is directly binding on a Member State (and on operators marketing to a Member State) without enactment of national law (although national law may be additionally enacted).

Brexit : PPE is covered by the EU Notice on Industrial Goods here. (I have posted a number of times with links to EU Notices)

Brexit in the UK, this new EU PPE Regulation applies from 21 April 2018, after Brexit it applies via the EU (Withdrawal) Bill. NB: the EU (Withdrawal) Bill is not yet enacted.

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Subscribers to Cardinal Environment EHS Legislation Registers and Checklists will be sent an Email Alert of the addition of this new EU Regulation to the PPE Register and Checklist component in their websystems.