The Personal Protective Equipment at Work Regulations were born in 1992, born in a different time as far as employment law is concerned. Before various financial crashes and economic uncertainty and at a time when employment meant employment, not the undefinable margins which exist now between employment and self-employment.
Constriction projects adapted to the backdrop of financial uncertainty by jettisoning expensive and possibly erroneous employees who had to be paid regardless of whether they were actually building or not building. They began living off labour only sub-contracted staff taken on through agencies only when the work was there to be done. Costs were reduced and profits rose as the effect of the first elements of gig economy kicked in. There was now a two or even three-layer system working on building sites. Employees, probably only those involved in the project and site management, sub-contracted companies who brought their own employees onto the site and finally an army of self-employed labor-only sub-contractors, brought onto the site as and when needed.
This has caused a fracture in health and safety law and how it applies to workplaces. There is a massive disconnect between the employee’s responsibilities and those on-site who were not defined as employees, one of those being the responsibility to provide adequate personal protective equipment. So the site rules were set by the Principal Contractor including what will be worn on site but had no responsibility to actually provide it. Self-employed sub-contractors don’t have an employer so no one to provide PPE. They were left having to provide their own.
This was seen as a step too far by regulatory authorities, not just in health and safety law but also in employment law where it was seen as a way of avoiding paying adequate Income Tax and National Insurance. Slowly and carefully this perceived hole was closed. A judicial review in November 2020 examined workers of this nature and re-defined them as ‘Limb’ Workers and their dependence on, and to, the contractor now classifying them as essentially being employed.
Now that re-aligning of the relationship between the self-employed and contractors has begun across the board and elements of the PPE regulations are finally being tweaked to bring it on message. So it is proposed and will be amended, that any contractor who uses labour-only sub-contractors will be required to provide them with all appropriate PPE as if they were employees.
The HSE is consulting on changes to the PPER 1992. The consultation launched on 19 July 2021 and will run for 4 weeks.
The aim of the consultation is to understand the impact on stakeholders and businesses of extending the scope of the employers’ duties under the PPER to workers and not only employees.
The Framework Directive (November 2020) sets out the minimum standards for health and safety through a series of general principles, and the Personal Protective Equipment Directive (“PPE Directive”) sets out the minimum health and safety requirements for the use of personal protective equipment in the workplace for workers.
What does this mean?
Employers will have a duty to provide limb (b) workers with the same health and safety protections in respect of PPE as they do currently for employees.
Options on how to achieve the extension of the provisions to workers in the legislation will not be presented during the consultation as the key legislative changes are being made to align with the court decision.
So, this will now require all contractors to re-examine their relationship with staff, specifically those who are essentially sub-contracted labour. All staff including this group will now be covered by all aspects of the PPE at Work Regulations. This may be the first of many re-alignments in the pipeline.
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