From 6 April 2022, employers will have to provide PPE to all workers. On that date the Personal Protective Equipment at Work (Amendment) Regulations 2022 (Regulations) will come into force. These follow the decision of the High Court in R (Independent Workers’ Union of Great Britain) v. Secretary of State for Work and Pensions and another. The court held that the UK had failed to adequately implement the EU’s Health and Safety Framework Directive (Framework Directive) and the Council Directive on the minimum health and safety requirements for the use by workers of personal protective equipment (PPE) at the workplace (PPE Directive). Section 44 of the Employment Rights Act 1996 (1996 Act) and Regulation 4 of the Personal Protective Equipment at Work Regulations 1992 currently limit protection to employees and thereby exclude other workers from their remit. This is in direct contrast to both the Framework Directive and the PPE Directive, which refer to “workers” throughout. Both EU Directives were required to be implemented by member states by 31 December 1992 and are therefore unaffected by Brexit.
The gaps in UK legislation have come to the forefront since the COVID-19 pandemic. Following the High Court case in 2020, the Independent Workers’ Union of Great Britain called for the government to take action. The new Regulations aim to rectify some of these issues by extending an employer’s duty to provide suitable PPE where there is a health and safety risk to all workers (not just employees). Under the 1996 Act, an “employee” is an individual working under a contract of employment, whereas a “worker” is an individual working under any contract “whereby the individual undertakes to do or perform personally any work or services“. The scope of “worker” status is therefore much wider and includes, for example, agency workers or casual workers.
It is important that employers pay heed to the new Regulations, which come into force on 6 April 2022, and that they not only continue to provide PPE to employees but that they also offer such PPE to all workers where there is a health and safety risk.