UK Poised to Expand Workplace PPE Obligations

​Employers in the United Kingdom that require personal protective equipment (PPE) on the jobsite will need to supply the health and safety gear to a broader worker population under proposed changes to the country's 1992 law governing PPE in the workplace. The change may affect small and medium-sized employers more than large employers, legal experts predict.

Companies providing PPE such as safety helmets, boots, goggles, gloves and face masks to employees will have to broaden PPE distribution to contractors.

Under the Personal Protective Equipment at Work 1992 Regulations, employers have had to provide PPE only to their employees. The proposed amendments would extend the obligation to "limb (b) workers," a U.K. worker category describing self-employed "dependent contractors" who personally provide services to other businesses. In describing a limb (b) worker, the government used the example of "Penny," a private-hire driver working casually for "Acme Driver." Penny can refuse work if she wants and must perform it herself if she decides to drive a customer; passengers pay Acme rather than Penny. In the U.K., individuals classified as workers generally enjoy certain rights and benefits not available to independent contractors, although fewer than full employees.

The U.K.'s Health and Safety Executive in July launched a four-week public consultation on the amendments after the High Court, in a case brought by the Independent Works Union of Great Britain, ruled in 2020 that the government had long failed to properly incorporate certain relevant European Union directives into U.K. law. The amendments will cover England, Scotland and Wales.

The regulations define PPE as equipment, including clothing, meant to protect a person at work against risks to their health and safety.

"For most employers, the changes to the PPE at Work regulations will involve very little change, as most organizations will likely have already been providing PPE based on the nature of the role itself rather than the status of the person doing it," said Mark Hamilton, an attorney with Dentons in Edinburgh.

"Perhaps in the case of employers who largely rely on workers—for example, food delivery companies—it will be a significant logistical and financial commitment having to now provide safety equipment such as helmets to all their workers, where previously they would just have made it a condition of work that one was worn, with the worker having to supply their own," he said.

Potentially Costly Changes

Most large employers already are expected to provide tools, including PPE, to keep people safe, said Tim Hill, an attorney with Eversheds Sutherland in Newcastle, England. Apart from the PPE workplace regulation, U.K. laws for decades have required businesses to look after the health and safety of everyone on their worksites, not only employees, he added.

Even before the proposed PPE legal changes, all people working on jobsites should have been provided with the necessary PPE and employers faced legal risk by not supplying it, based on the Health and Safety at Work etc Act 1974, Section 3, he said. That law requires businesses to protect anyone on a worksite from health and safety risks.

Gig economy workers, on the other hand, now may need the company they work for to provide PPE, according to Hill, who also said the changes are likely to have a more significant effect on smaller employers compared with major corporations.

Some companies have asked whether, under the proposed changes, they will have to provide PPE to people hired through staffing agencies, as supplying it to short-term agency workers could become costly, Hill said. In the past, he has suggested lending protective equipment to short-term agency workers, then giving it to them once they've stayed for a certain length of time or have been hired to the permanent staff.

The changes could become costly, especially for firms needing more technical equipment, Hill said.

Changes May Take Effect Next Year

The proposed changes are likely to go into effect by 2022, according to Hill. Regulations proposed by a government agency generally tend to be approved as presented, he said. The proposed changes are likely to be put before Parliament in the next few months and go into effect by the new year, possibly with a transition period, he said.

Hill believes that COVID-19 adds relevance to the issue. As authorities inquire into the pandemic, they will likely explore the provision of PPE, or lack thereof, to front-line workers, especially to those in care homes, he said, citing disparities in the PPE people received based on whether they were in the public or private sector and whether they were agency or full-time staff.

"I think the idea is that it shouldn't get so bogged down in technicalities of who you worked for … that everybody should be given PPE and stay safe," Hill said.

If a workplace takes PPE measures because of COVID-19 as an industrial risk, the employer will be obligated to provide suitable and effective PPE to workers as well as employees under the draft changes, noted Tahl Tyson, an international employment lawyer with Littler in Seattle.

The same concept applies to broader PPE categories as well.

"You should consider the status of everyone working for you in an area where you already have PPE obligations toward your employees and see if you have additional obligations to those workers because they are limb (b) workers," she said.

Employees and workers may have to wear PPE under legislation other than the Personal Protective Equipment at Work 1992 Regulations. The consultation on the proposed changes didn't apply to specific PPE related to lead exposure; working with asbestos or ionizing radiation, controlling noise at work; or control of hazardous workplace substances, including chemicals, fumes, dust or gases.

Dinah Wisenberg Brin is a freelance reporter and writer based in Philadelphia.