When the gloves are on

Keith Patten considers an important legal development in the battle over the provision of personal protective equipment

Rocket science it isn’t, but the Court of Appeal (CA) has made an important point in over­turning the decision in the case of Threllfall -v- Hull City Council (see Health and Safety News Autumn 2010) that, in applying a set of regulations, it is important to consider what those regulations actually say.

It is a significant ruling for the operation of the Personal Protective Equipment (PPE) at Work Regulations (1992).

Mr Threlfall suffered a serious cut to his finger as he cleared bags of rubbish from the garden of an empty council house – a task that was part of his job.

He was unable to identify what it was in the bag that had cut him, but it was accepted by the council that sharp objects were sometimes found in bags of rubbish. Mr Threlfall was wearing gloves supplied by his employer. These were described as ordinary gardening gloves and were not cut resistant.

He lost his claim initially because the judge decided that the risk of sharp objects, although admitted, was very low and therefore the council did not need to provide better gloves to deal with what was a fairly remote risk.

This decision seemed to be an application of an old fashioned test from the law of negligence and to largely ignore the greater level of protection provided by the PPE regulations.

The CA agreed.

The Regulations

The key obligation under the regulations is 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” unless the risk was so trivial it could be ignored.

This obligation came into effect in this case because the risk of laceration by sharp objects, although unlikely, was not trivial if it were to occur.

So the question then was what was “suitable” personal protective equipment.

In defence, the council sought to argue that the gloves provided were suitable because they protected against all risks that were reasonably likely to occur. The CA rejected this approach.

The Court of Appeal decision

It may be an obvious point, that in applying a set of regulations it is important to consider what those regulations actually say. But it is a point that employers and courts would do well to remember.

The PPE regulations trigger the employer’s duty to act whenever there is a risk of injury that is not trivial, even if it is not all that likely. Once it was accepted that sharp objects could sometimes be found in the bags, the council was obliged to do something to protect against that risk. What they needed to do was to provide gloves that were “suitable”.

In deciding what was suitable, the employers should have looked to their risk assessment. A risk assessment had been carried out but it had not even considered the risk of laceration from sharp objects, merely the more general risk of garden clearance.

The risk assessment should have considered what the risk was and should have addressed what kind of gloves would have been effective to guard against that risk, which in this case would have been cut resistant gloves, readily available on the market, albeit at greater cost.

As Lady Justice Smith made clear in her judgment, effectiveness is central to the issue of suitability. Put another way, a pair of gloves that were not effective in guarding against the accepted risk could not be suitable.

What does this mean?

The PPE regulations being applied in this case are not the easiest to understand. But the CA has made it clear they require a step-by-step approach. If there is a residual risk that is more than trivial, the employer is obliged to provide protective equipment effective in dealing with that risk.

In deciding what is effective, it must carry out a focused and proactive risk assessment. It cannot decide to ignore a recognised risk merely because it is not all that likely to occur.

Once again, the key to this decision is the importance of risk assessment. Lady Justice Smith has been critical in a previous case of a “tick-box” approach to carrying out risk assessments. What risk assessments should be are a “blueprint for action”.

The Court of Appeal decision has confirmed that the regulations do indeed provide protection to workers which is more extensive than that provided by the old law of negligence. They have not, however, imposed absolute liability on employers. It still cannot be said that the mere fact that the accident occurred shows that the employer must have failed to provide effective protective equipment.

The assessment is not done with the benefit of hindsight.

The question is what risks were known about (or should have been known about) at the time, and whether the equipment offered effective protection in the light of those known risks. What the decision is, however, is a welcome confirmation that regulations, and the risk assessments they require, are to be taken seriously by both employers and courts.