Choosing the right glove for the job
Employers are still challenging the definition of personal protective equipment, writes Keith Patten.
The range of personal protective equipment (PPE) and its potential use is wide and varied. It can include:
- goggles to protect the eyes against chemical splashes
- hard hats to protect the head from impact
- gloves to protect the fingers and hands against cuts
- full breathing apparatus to protect against low oxygen levels
- safety boots to protect the feet against crushing
- stab vests to protect the body from potential violence.
The law on what PPE needs to be provided and when will, therefore, be of significant interest to many workers across different sectors.
PPE should be regarded as a protection of last resort. The employer’s first duty is to see if the risk can be controlled by other means. Only if it cannot should PPE be issued to protect against the risk.
An employer’s obligations in respect to PPE are set out in the Personal Protective Equipment at Work Regulations 1992. The key duty is set out in Regulation 4. It says that every employer “shall ensure that suitable personal protective equipment” is provided to their employees who are exposed to “a risk to their health and safety while at work”.
The wording of this regulation follows a trend in modern health and safety law to set broad generalised goals that an employer needs to seek to achieve. It is inevitable, therefore, that the courts will be involved in interpreting these regulations and in adjudicating whether employers have complied in particular circumstances.
This can be a bit of a battleground. The Regulations are designed to improve the health and safety of workers and should, therefore, give workers better protection than they might have received under the old fashioned law of negligence. Sometimes, however, it seems that judges are making decisions that limit the potential scope of these Regulations.
A recent example is the decision in Threlfall -v- Hull City Council. Mr Threlfall suffered a serious cut to his finger while removing bags of rubbish for his employer. He was wearing gloves supplied by his employer but these failed to protect him.
While it was not clear what had cut him, it was accepted that, from time to time, sharp objects would be found in bags of rubbish. Mr Threlfall’s argument was fairly straightforward – Regulation 4 applied because there was a risk to his health and safety at work (as shown by the acceptance that sharp objects would be found in the rubbish bags from time to time) and was breached because the gloves supplied had not prevented him from being cut and so could not be “suitable” to protect him against that risk.
Despite this argument seeming to be in line with the wording of the regulation, the judge found against him. The grounds for this appear to be that cuts in these circumstances were not common, so the gloves were suitable for the level of risk the employers could foresee.
This decision is potentially open to criticism because it appears to treat the regulations as if they were a branch of negligence law and therefore imposes a lower obligation on the employer.
This battle is not over, however, as the case is due to be taken to the Court of Appeal in October this year, which will get the chance to say whether these regulations should be regarded as giving workers the additional protections they were, arguably, designed to provide.
In an ideal world, employers would comply with all of their obligations before someone gets hurt. The pursuit of claims through the courts can have a big impact on the improvement of health and safety in the future.
An interesting recent example is the case of Woodward -v- West Midlands Police. Mrs Woodward, a Unison member, was a Police Community Support Officer on duty in Wolverhampton city centre in the early hours of the morning. She was attacked by a man who jabbed her hard in the chest at least twice.
Although she was not actually stabbed she argued that she should have been issued with a stab resistant vest (as the police themselves were) which would have prevented or significantly reduced the injury. The defendants contested this claim throughout and only after three days of evidence in court did they finally concede liability, albeit on a different ground.
They accepted liability on the basis that Mrs Woodward should not have been deployed in the city centre at that time of night. Significantly, a couple of weeks after the case concluded, the West Midlands Police issued stab resistant vests to all of their Community Support Officers.
The timing of this may have been a coincidence, but it might be a reasonable conclusion to draw that the tenacity of Mrs Woodward and her union in bringing the case to court resulted in an important improvement in health and safety for the future.
So, even though these regulations are now 18 years old, the courts are still being called on to develop their interpretation. This is a battle that it is important for workers to continue fighting.
PPE, like many aspects of health and safety, is seen by some employers as an expensive luxury and in times of austerity it will not be surprising if we see attempts by employers to water down the extent of their obligations. It is important that the unions remain in the forefront of the fight to resist this.