Since April 2022 employers have had to ensure there is no difference in the way personal protective equipment (PPE) is provided to employees and limb (b) workers. Andrew Sanderson and Louise Paull examine the implications.
The 1992 PPER places a duty on every UK employer to ensure suitable PPE is provided to “employees” who may be exposed to a risk to their health or safety while at work.
The new regulations extend employers’ and workers’ duties regarding PPE to “limb (b) workers” (ie, workers who generally have a more casual employment relationship than regular “employees” and work under a contract for service). They state that if PPE is required, employers must ensure their workers have sufficient information, instruction and training on the use of PPE.
Importantly, as of 6 April, employers must ensure there is no difference in the way PPE is provided to employees and limb (b) workers, as defined by PPER 2022.
For limb (b) workers themselves, these now have a duty to use any PPE they are provided with in accordance with their training and instruction, and ensure it is returned to the storage area provided by their employer once they have finished using it.
If a risk assessment indicates that a limb (b) worker requires PPE to carry out their work activities, the employer must carry out a PPE suitability assessment and provide the PPE free of charge as they do for other employees.
The extension of the UK’s PPE regulations has refocused attention on the issue of workwear inequality. While different uniform requirements for men and women working in the same roles have occasionally hit the headlines over the years for being unfair, discrepancies in the provision of PPE are potentially dangerous.
While the Covid-19 pandemic shone a light on the importance of PPE in medical settings, such equipment should be regarded as the last resort to protect against risks to health and safety, rather than the primary barrier”
Anecdotal evidence suggests inappropriate PPE is being given to different categories of worker, whether that be according to their gender, minority group status or employment status, which could be grounds for discrimination claims.
There are no reliable statistics on gender or other classifications of the UK’s limb (b) workforce, but the inclusion of this group in the PPER 2022 expands the risk of discriminatory treatment.
What constitutes PPE?
PPE is defined in the PPER 1992 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 or safety, and any addition or accessory designed to meet that objective”.
While the Covid-19 pandemic shone a light on the importance of PPE in medical settings, in general such equipment should be regarded as the last resort to protect against risks to health and safety, rather than the primary barrier.
Engineering controls and safe systems of work should be considered first.
Women’s workwear requirements being treated as secondary in importance to those of their male colleagues, presenting potentially serious safety risks”
Inspectors from the UK’s Health and Safety Executive (HSE), the government agency responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, and for research into occupational risks, already include assessment of PPE as part of their routine inspections.
Enforcement action can range from verbal or written advice to enforcement notices and, in the most serious cases, prosecution of duty-holders.
The PPE gender gap: H&S risks and discrimination
In some industries and professions, there is a noticeable difference between the number of males and females employed in certain roles.
For example, UK government statistics published in March this year show that women account for just 15% of the UK construction workforce.
Other sectors, such as mining and quarrying, where 17% of the workforce are female, and transportation and storage, where 23% of workers are women, have a similar imbalance. This can result in women’s workwear requirements being treated as secondary in importance to those of their male colleagues, presenting potentially serious safety risks.
Even in sectors where women make up the majority of the workforce, such as the UK’s healthcare system (where an average of 77% of staff are female, according to NHS statistics), it has been suggested – for example in articles published in the British Medical Journal (BMJ) – that PPE is designed primarily for Caucasian men, and does not fit female staff or other groups of worker.
Poorly fitted PPE places female workers, and possibly other minority groups, in unnecessary danger and significantly hinders their work, due to the difficulty of performing physical tasks in poorly-fitting clothing and equipment.
Why employers need to take PPE equality seriously
For any work that involves a degree of risk to workers, it is the responsibility of the employer to provide each employee with suitable PPE.
Failure to provide appropriate PPE for female workers is likely to be discrimination if that failure puts women at a substantial disadvantage compared to men. Such discrimination may not be limited to women, but could also include other groups protected under discrimination legislation who may require work wear tailored to them.
For workers with a disability, employers may need to make reasonable adjustments to adapt work wear, if the standard PPE puts the disabled worker at a substantial disadvantage as compared to those without a disability.
The requirement under the PPER 2022 that employers must carry out a PPE suitability assessment for limb (b) workers should prompt employers to think about what clothing and equipment they are providing for all their workers, revisit their policies and ensure they are doing everything to comply with the latest regulations, breaking down any form of discrimination and addressing any disadvantages.