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THE PERSONAL PROTECTIVE EQUIPMENT AT WORK

REGULATIONS 1992

ByJames McCann

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►The PPEW Regulations implement EC Directive 89/656/EEC on the Use of PPE in the Workplace. This Directive is one of the first series of individual directives under the Framework Directive (89/39/EEC), aimed at achieving minimum common health and safety standards in member states. The regulations also implement some provisions of the Framework Directive on employees' duties in respect of PPE.

BACKGROUND

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► The regulations place duties on employers towards their employees, but do not place any duties in relation to any other persons who may be affected by their activities (e.g. customers). HSW Act s.3 will, of course, continue to apply in such cases. The regulations place identical duties on the self-employed in respect of their own safety.

DUTIES

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► Principally the regulations are drafted in terms that require the employer to ensure that (for example) PPE is provided.

► This is to allow for common practices in some industries (e.g. construction, chemical ) where the site occupier or major contractor would normally be best placed to provide, maintain, etc., PPE.

► Although employers may not themselves carry out the necessary action, it is still their responsibility to ensure that the necessary action is taken to protect their employees' health and safety.

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GENERAL

►The regulations have broad application because of the generic definition of PPE, limited only by specific disapplications in reg.3(2). These are intended to exclude equipment which is either;

► not PPE within its normally accepted sense,

► or is not an appropriate subject for health and safety legislation.

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►The codes of regulations listed in reg.3(3), require the provision and use of certain PPE against particular hazards, and apply in place of the PPEW Regulations.

►These regulations are, however, amended by the PPEW Regulations so that they fully implement the Use of PPE Directive in respect of the types of PPE with which they are concerned.

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► Since the PPEW Regulations are relevant statutory provisions, HSW Act s. 9 will apply in the case of PPE provided to comply with the regulations. Charging employees for the provision or use of such PPE is not allowed. This would not, of course, prevent employers charging for PPE they provide under the general duty of HSW Act s. 3 or where there is no relevant statute. For example, some current schemes for part payment towards the cost of safety footwear could still be permitted, provided that the footwear is not for use in circumstances where risks are significant and reg.4 requires PPE to be provided).

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► The extent to which HSW Act s. 9 may prevent employers charging their employees for any use of the PPE outside work, may be raised. It is likely that HSW Act s. 9 will prevent any charging for PPE provided under the regulations, whether or not it is also used outside work. However, since this has never been tested in the courts, it is possible that some schemes could be devised under which charging for private use of PPE would be allowed. Enforcement officers should exercise discretion in considering whether to take enforcement action against any such schemes which were genuinely voluntary and had no adverse effects on health, safety and welfare.

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ENFORCEMENT APPROACH

► The PPEW Regulations do not impose significant further requirements that were not either explicitly covered in existing regulations or implicitly covered under HSW Act. In respect of enforcement, the explicit requirements under the PPEW Regs should be considered before enforcing under the general requirements of HSW Act.

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► There will be occasions when action could be considered under other regulations. In these cases the normal policy of enforcing under the most appropriate and/or specific regulations should be followed. For example, where a person was using unsuitable equipment including PPE to work on or near electrical equipment, action under the Electricity at Work Regulations 1989 reg.4 would be more appropriate in most cases.

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► The requirements of reg.4 (provision, etc), reg.7 (maintenance etc), reg.8 (accommodation , etc.), and reg.9 (information, instruction and training) are considered absolute and likely to be the main subject of any enforcement action. The PPEW Regulations should not change policy in respect of overall standards sought and enforced in most sectors.

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In summary, an enforcement strategy should take note of the following;

►(i) The approach should not be altered where the regulations re-enforce existing requirements, e.g., the wearing of eye protection when using abrasive wheels.

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►(ii) A more pragmatic approach should be adopted where the requirements are new or more prescriptive particularly where the risk is not immediate.

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(iii) Appropriate action should be taken where there are immediate risks to health and safety irrespective of the newness of the legal requirements e.g.,

► failure to use high visibility jackets by banks men guiding vehicles and

► failure to wear anti-static boots where there is a risk of ignition,

► or wrist or hand protection when carrying glass sheets.

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INTERPRETATION (REG.2)

►The definition of PPE is broad, and brings within the scope of the Regulations a wide range of equipment including safety harnesses, life jackets and high visibility clothing as well as more obvious types of PPE such as hard hats, gloves and safety boots. In all cases, however, the equipment will only be PPE as defined, and reg 2 will only apply if it protects against a risk to health and safety.

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► Even though clothing affording protection against weather is specifically mentioned in the definition, such clothing would only be subject to the Regulations if it was provided against an established/identified risk to health and safety. Factors to be considered include the length and frequency of exposure to the wet/cold conditions, the temperature and rainfall, and the types of ordinary clothing which the employee can reasonably be expected to provide and wear for work

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►In practice, however, the scope of the regulations is limited by the specific disapplications contained in reg.3

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DISAPPLICATIONS (REG.3)

► The disapplication for "ordinary working clothes and uniforms’ in reg.3(2)(a) is included so that employers are not expected to provide items of everyday wear which may give limited protection against lower level risks, e.g. some minor impacts and abrasions or exposure to the sun. However, where risks are such that ordinary clothing will not provide adequate protection then the employer will need to provide PPE which does (e.g. high visibility clothing for those working where vehicle movements take place).

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► Regulation 3 (2) (b) disapplies the regulations only in respect of offensive weapons, and it is not intended that it should prevent the regulations applying to protective helmets and other protective equipment worn by security personnel or law and order services. The Prevention of Crime Act 1953 s. 1(4) as amended by the Public Order Act 1986, Offensive Weapons Act 1996 and Criminal Justice Act 1988 defines "offensive weapons" as "any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him".

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► The Road Traffic Act 1988 s. 192 (1) (and hence the PPEW Regulations reg. 3 (2) (d)) define a road as "any highway and any other road to which the public has access, and includes bridges over which a road passes".

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► The PPEW Regulations are disapplied where any of the 6 codes of regulations listed in reg.3(3) apply. However this disapplication is limited to protection against risks which are within the ambit of those 6 codes. In some cases it is possible that one item of PPE could be subject to both Codes of regulations if it protects against more than one risk. For example, the PPEW Regulations will not apply to a chemical protective glove provided under COSHH, solely to protect against contact with corrosive fluids. However, if the glove is provided for use in situations where it would also have to provide protection against broken glass, then the PPEW Regulations would apply in addition to COSHH.

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The disapplications in reg.3(3) do not apply to reg.5

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PROVISION OF PPE (REG.4)

► PPE should always be considered as the ‘last resort’ to protect against risks to health and safety; engineering controls and safe systems of work to remove the risk should always be considered first. However, an offence will occur under reg.4(1), whenever PPE is not provided to protect against a risk which is not adequately controlled by other means. It will be possible for there to be an offence under this regulation and, at the same time, for there to be an offence under another part of the Relevant Statutory Provisions (RSPs) and regulations for failure to take other measures to protect against the same risk. In these circumstances it could be appropriate to quote both codes of regulations in any notice but proceedings should normally be implemented for the more significant breach.

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►Provision of PPE in accordance with reg.4(1) does not provide a defence to any charge of failure to comply with any other relevant statutory provisions.

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► "Adequately controlled" is used to set a 'minimal risk" threshold beyond which PPE is required (reg.4(1)), and to provide a test of the effectiveness of the PPE (reg. 4 (3) (d) ) .

► In the case of emergency escape, for PPE which is not normally worn, it would not be possible to claim that the regulations do not apply because the risks are normally adequately controlled by other means. If it is foreseeable that a fire or other incident could require the wearing of escape PPE, then reg.4(1) will apply. In particular, the definition of PPE in reg.2(1) makes it clear the regulations apply to all PPE intended to be worn.

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► The PPE provided must be "suitable". Regulation 4(3) lists requirements which PPE must meet if it is to be suitable. The relationship of reg.4(1) to reg. 4 (3) is like that of HSW Act s. 2 (1) and s. 2 (2), that is:

► (i) the offence is under the first provision; the second only sets out some particular ways in which the offence can occur; and

► (ii) the second provision does not limit the generality of the first duty.

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► Although there are no explicit qualifications of reg. 4 (3) (b) , it should be recognised that the employer can have only partial knowledge of the state of health of the wearer of PPE. Account should be taken of this limitation when implementing enforcement action.

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Regulation 4 (3)(d) is qualified by ‘so far as is practicable’ in recognition that some types of PPE cannot provide adequate control of the risks against which they are designed to protect the wearer (e.g. protective clothing for fire-fighters).

► The impracticality of achieving adequate control is not grounds for failing to provide or use PPE.

► Equally, cost is not a relevant consideration.

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COMPATIBILITY OF PPE (REG. 5)

► Regulation 5 requires different items of PPE worn at the same time to be compatible, including any PPE provided under the 6 codes of regulations listed in reg 3(3). For example, respirators provided under COSHH must be compatible with eye protection provided under PPEW.

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ASSESSMENT OF PPE (REG. 6)

► Regulation 6 is restricted to an assessment to determine the suitability of the PPE to be chosen. Action should be considered under the Management of Health and Safety at Work Regulations 1999 in circumstances where a risk assessment has not been completed and risks to health and safety has been identified.

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► It is reg 6(1) which creates the substantive duty. Regulation 6(2) only illustrates some of the issues which need to be addressed in the assessment process. Enforcement action should be taken under reg 6(1). Although the steps in reg. 6(2) will constitute the main part of the assessment, other elements of suitability set out in reg. 4(3) will also need to be considered.

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MAINTENANCE (REG. 7)

► This provision is similar to the maintenance requirements in the Workplace Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998. However, there is a specific reference to cleaning and replacement in PPEW. Cleaning is relevant both to the hygiene of any items of PPE where it may be used by more than one person, and to the prevention of ill health, irritation etc. to the wearer which may result from contamination of the PPE by process materials or dirt.