New legal duty to provide PPE for all workers not just employees
Our solicitors, Thompsons, have produced guidance for members on changes coming into effect on 6 April 2022
The College is advising members of a legal change which means that from 6 April 2022, businesses with workers must provide them with PPE free of charge. This includes providing PPE to podiatrists who may work within your clinic, including those who are in self-employed roles.
Our solicitors, Thompsons, have produced this helpful guidance.
What is changing?
With effect from 6 April 2022 all workers, not just employees, must be provided with suitable PPE, free of charge. The new requirements are set out in the Personal Protective Equipment at Work (Amendment) Regulations 2022.
Who will be affected?
A worker (sometimes referred to as a limb (b) worker) means anyone who has an arrangement to perform work or services personally for anyone else (except a client or customer of a profession or business undertaking).
This definition is likely to apply to many Associates who work in private practice on a casual basis.
Workers have a right to be provided with PPE. The organisation or individual they work for:
- should carry out a risk assessment
- should provide PPE free of charge
- is responsible for the maintenance, storage and replacement of any PPE which they provide.
- report loss and any defects in the PPE provided
- use the PPE in accordance with the training and instruction provided
- ensure PPE is returned to the storage place provided.
How do I know who is a 'worker'?
It is not always easy to be certain whether or not someone is a worker and there have been a number of recent employment tribunal cases involving disputes on the issue of worker status.
The HSE guidance on the new regulations says that workers generally:
- 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)
However, the guidance then goes on to say:
As every employment relationship will be specific to the individual and employer, the precise status of any worker can ultimately only be determined by a court or tribunal.
In the event of a dispute about worker status, a court or employment tribunal would look at all the evidence and build up a detailed picture of the nature of the working arrangements before making a determination as to whether or not a person is a worker. Relevant factors include the points listed above and also:
- whether the person is under the supervision or control of a manager
- whether the person has had to agree to terms and conditions to get work
- whether the person is provided with tools or equipment to do their work
In broad terms, where a person who owns a practice exercises some degree of control over the work done by their Associates, then the Associates may well fall within the definition of a worker.
What is meant by PPE?
The regulations define PPE 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
Obvious examples of PPE are: aprons, gloves, facemasks and, in some cases, eye protection such as a visor.
Other work clothing, which is not designed to protect the safety of the user, is not PPE.
Why has the law changed?
In November 2020, the High Court said that the UK had not properly transposed a European Directive into UK law. The law has been changed to reflect the obligation in the directive, to provide workers with suitable PPE.
Where can I find out more information?
HSE guidance on the regulations: https://www.hse.gov.uk/ppe/ppe-regulations-2022.htm.
HSE guidance on PPE: https://www.hse.gov.uk/pubns/priced/l25.pdf
Government guidance on worker status: https://www.gov.uk/employment-status/worker