The Pandemic has made many employers more aware than ever of the clear overlap between employment issues with health and safety practices.
As we start to gradually return to a more normal working life, employers need to be aware of what is on the changing health and safety horizon, post pandemic.
An important update to regulations concerns PPE. A term much used during the pandemic. Personal Protective Equipment applies in many other areas, aside from protecting people from infection.
The PPE Regulations, 1992 currently require that every employer provide suitable PPE to “employees” who may be exposed to a risk to their health or safety while at work. The amended regulations mean that from April, this duty will be extended to ensure that agency and temporary workers – so-called “limb (b)” workers – are also covered by the legislation.
The definition of “worker” can be found in the Employment Rights Act 1996. The definition has two limbs, (a) and (b):
- Limb (a) refers to those with a contract of employment. These workers are classified as employees under the Health and Safety at Work etc Act 1974, and have always been within the scope of the existing regulations.
- Limb (b) describes workers who work under a contract for service, e.g. self-employed contractors, and casual (zero hours) workers. These individuals have not been covered by the PPE regulations up to now.
So, from 6th April, all workers will have to be provided with suitable PPE free of charge, be they casual, agency workers, subcontractors and the self-employed, if the nature of their work so requires the wearing of suitable and sufficient PPE.
The decision to extend protection to Limb (b) workers who carry out casual or irregular work, was prompted by a 2020 High Court judgment, which concluded that the UK had failed to adequately transpose aspects of two EU Directives into UK law post-Brexit. The High Court ruled that UK implementation of EU law should extend to limb (b) workers. The HSE, after consultation, have now updated the PPE Regulations accordingly.
So, whether you work in healthcare, tree surgery, manufacturing, agriculture or any other sector where workers need protection to allow them to carry out their roles, if a worker needs protective equipment, it will be the ‘employer’s’ responsibility to make sure they have it.
What does this mean for employers?
Up to now, many employers have resisted providing these groups of workers with PPE. They have often argued, for instance, that it was up to either the agency supplying the labour to pay for the PPE, or that the agency workers themselves supply, e.g. their own safety footwear.
This is especially true if the worker could only be on site for a couple of days at most. So, there are likely to be some interesting conversations ahead.
For most employers, the changes to the regulations will involve very little change, as most organisations will likely have already been providing PPE based on the nature of the role itself rather than the status of the person doing it.
In the case of employers who largely rely on workers – for example food delivery companies and construction companies – it will be a significant logistical and financial commitment having to now provide safety equipment to all their workers, where previously they would just have made it a condition of work that one was worn, with the worker or their firm having to supply their own.
The Highway Code
In January, the Government announced, without much fanfare, the introduction of the new Highway Code.
Many employers will have to make sure that relevant employees are briefed on the new code. Particularly if they employ drivers, and especially if they are in transport.
The changes to driver behaviour could be significant, as the new code introduces new responsibilities for drivers and road users in a strict hierarchy. Broadly speaking, the larger, the faster and more dangerous the mode of transport is to other road users and pedestrians, the more those drivers have to take care and give priority to less protected more vulnerable users.
This means that particularly in transport, large trucks and trailers present a much greater threat than vans/minibuses, and cars in turn, present a much greater threat than motorbikes and cycles. The objective of the hierarchy is to ensure “a more mutually respectful and considerate culture of safe and effective road use that benefits all users.”
Full details of the changes in the code can be found here, and you should make sure that your drivers are aware of them.
The issue of vicarious liability and employer responsibility is often raised in circumstances when an employee while at work, driving a business vehicle, seriously hurts, or worse still, kills others on the road, particularly a pedestrian or cyclist. If the employer has done all that is reasonably practical to inform, instruct and train their drivers on safe driving, then that various liability can be substantially reduced.
So, it’s not enough to just send out a briefing sheet, make sure that you capture evidence that drivers have been properly informed of the new Highway Code, and they sign to understand that they are aware of, and will follow, the new hierarchy of measures. Indeed, if you wish to completely reduce vicarious liability, send your drivers on regular (typically every 3 years) advanced driver training. Your insurance company will usually offer a discount on your premiums if you do this.
One change that has crept under the radar is that the 2022 update prohibits any driver from using their handheld device for anything, including taking videos or photos, scrolling through playlists or playing games – even if the vehicle is not moving. While mobile phones can be used for hands-free calls, payment at tolls or booths and satellite navigation, they’ll need to be securely fixed.
This update finally pulls the Code in line with the Law, banning all unnecessary – and arguably dangerous – uses of mobile phones behind the wheel. Distracted driving is the second leading cause of collisions, after drunk driving. In line with the revised penalties introduced in 2017, motorists face a £200 fine and six penalty points, if caught touching their mobiles during their journeys. This further reinforces the need to insist that employees do not use mobile phones, and to ensure that they are not phoned from work.
Additionally, the new Highway code requires appropriate training, as these vehicles will be classed as work equipment, so the duty to ensure that drivers are competent to drive is part of the Provision and Use of Work Equipment Regulations, known as PUWER for short.
Also, part of these regulations is that employers have a duty of care to ensure that the vehicles used for business purposes, whether they are owned by the organisation or by the employee, are roadworthy, properly insured, MOT’d and serviced. They should also be checking regularly on driving licences, disqualifications and penalties, and ensuring their drivers are properly trained.
There have been calls to reverse the changes, but this is unlikely to be a successful campaign, so they are here to stay.
At BackupHR, we constantly highlight and emphasise the fact that driving is the riskiest activity we do in our day-to-day lives. Yet, because it is also regarded by most of us as a standard life skill, employers often wrongly assume that holding a driving licence is sufficient proof of competence. In health and safety law, that is not the case, which is why making sure that your drivers are competent, safe and hold up-to-date knowledge when in front of the wheel, is essential. Ask yourself when was the last time you looked at the most recent version of the Highway Code? It is probably the same for many of the people employed to undertake work-related driving.
Apart from the safety issues, this new set of rules will impact your business. It might not be that obvious, but fines, points and loss of driving licence can impact on an employee’s ability to perform their responsibilities.
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.