PPE legal problem

[derek]

Good day to you all.

I have raised an issue with the HSE over the provision of PPE to employees when engaged by an employer irrespective of the length of that employment and the requirement of the employer to provide PPE

In this case the issue is the provision of Diving Suits and other thermal protection equipment under the PPE regulations.

The HSE said this:

HSE's position is as follows:

“Diving equipment (including dry suits and under-suits) is PPE within the intended meaning of the PPE Directive and our own PPE Regulations 2002, and should in principle be provided by the employer. The general rule is that workers should not have to pay for their own PPE.

HSE is content with some existing arrangements where contractors pay a daily allowance to workers to compensate them for the use of their own PPE. This approach recognises the high cost of dry suits/under-suits (and the short term nature of some employment contracts), and the fact that some divers feel more comfortable wearing their own personal suits/under-suits”.

The existing arrangements from the union’s point of view are clearly different in that it’s a case of no diving suit etc, no job. As to the daily allowance, first I've heard of it?

But also from a Union Reps point of view, this response from the HSE is to say the least problematic as it opens up a very large can of worms in that employers could and would if they could get away with it in any industry, not supply PPE, but make the employee provide the PPE and include within their pay a supplement they feel warrants the use of that PPE, to cover a proportion of the cost of that PPE as they see fit.

Where do we draw the line, can all employers now take this view and negate the responsibility to supply PPE, I doubt it, but the more unscrupulous certainly will.

Opinions on this would be most welcome especially any case law to refute such drivel from the HSE.

Regards Derek Moore

[Coldrop]

This is just my opinion as I dont deal with this AT ALL

Diving personel are very different to "normal" employees who require PPE

I would have thought that any diver would have there own equipment/PPE as this is a specialist profession and you wouldn't want just basic PPE or cheap stuff

Offering an allowance seems a reasonable step to cover wear n tear

I dont know how expensive this stuff is but if I was an employer, I wouldn't want to keep buying specialist and expensive equipment that only fits one person and could not be used again by someone else, especially if turnover of personel was high due to short contracts

[otto]

Derek, I believe we have batted this around before - I think it went down the route of ascertaining the employment status of the individual concerned.

viewtopic.php?p=81612&highlight=#81612

Has anything new happened - if the guys are "self employed" they will still have to provide their own PPE.
Edited - fixed the link

Otto

[Coldrop]

Its a dead link

[Jack Kane]

There is a FAQ on PPE here.....

viewtopic.php?t=13592

[derek]

Otto,
Hammered the employment status out with the Inland Revenue. As they (divers) are under direction and control of a third party, paid by the day or hour including bonuses and overtime and do not supply the main tools or plant. They are employees.

Coldrop, why are diving personnel any different, what is the difference between any employee where the employer has a duty to provide PPE. Perhaps the Fire Service or the Nuclear power industry should make their personnel provide their own expensive PPE and pay a sum towards the cost. Give me break, what next, where do you draw the line. Based on that comment, why not make all employees pay for their own PPE and save industry millions. The bosses will love it but I’m sure the HSE would then have something to say differently

In the HSE explanation it admitted that; “The general rule is that workers should not have to pay for their own PPE”.
As I said in the original comment in reply to the HSE reply of “HSE is content with some existing arrangements where contractors pay a daily allowance to workers” I said “As to the daily allowance, first I've heard of it”? The employers state, no suit no job because they don’t want the expense and that is exploitation.

The Personal Protective Equipment at Work Regulations 1992, state:
Provision of personal protective equipment
4.—(1) Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.
It says ‘every employer shall’, not just the ones who want to provide it unless the regulations do not apply and the diving sector is not in the Dis-application of these Regulations.

The HSWA 74 section 9. “No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions”.
The PPE regs state the employer provides it and the employee should not be charged to provide their own PPE

Finally the Personal Protective Equipment Regulations 2002, in the Annexes lists under part
3.11. Safety devices for diving equipment
2. Where the foreseeable conditions of use so require, the equipment must comprise:
(a) a suit which protects the user against the pressure resulting from the depth of immersion (see 3.2) and/or against cold (see 3.7);

Sorry Coldrop but your argument “Diving personnel are very different to "normal" employees who require PPE” and they should pay for PPE as it is too expensive to provide suits for moving contractors, is very flawed.

I’m looking for some case law that challenges the view to an employee providing PPE when the employer has that provision.

For information; Diving suits come in 10 standard sizes to suit many size variations and cost between £500 to £1000 each, plus the thermal under suits, gloves, seals etc which will add another £200 plus. So if the company has a number of differing sizes that would fit the majority of personnel capable of complying with the medical requirements.

[Jack Kane]

Where do we draw the line, can all employers now take this view and negate the responsibility to supply PPE, I doubt it, but the more unscrupulous certainly will.

In short, no. I'm not getting into the who pays argument, but the following is interesting.

I was recently sent this case law from a friend that may be useful to you.....

HENSER-LEATHER v SECURICOR CASH SERVICES LTD

http://www.scotcourts.gov.uk/opinions/2006CSOH79.html

[Messy]

Otto,
Hammered the employment status out with the Inland Revenue. As they (divers) ......do not supply the main tools or plant. They are employees.


For information; Diving suits come in 10 standard sizes to suit many size variations and cost between £500 to £1000 each, plus the thermal under suits, gloves, seals etc which will add another £200 plus. .

Derek

I am sorry I cannot add to this discussion as it is well away from my area of interest, but I am intrigued as the employment status you describe that if an individual is deemed not have supplied 'main tools' they are employees.

Surely by shelling out nearly two grand on PPE, and perhaps being employed for a limited time such as one day - how does that fit in with the IR's 'main tools' rule??? Isn't £2000 of PPE a main tool?

[otto]

Derek, employed status from the inland revenue does not nessercerily mean that the divers are employed - the whole area of employed vs self employed is very sketchy. What applies for tax purposes doesn't always apply for employment law purposes - strange but that's the way it is.
There is the case law that I have quoted on the above link to the previous post - this mostly regards employement status - however as previously stated, are the divers willing to give up self employed "benefits" for a suit and a kirby morgan? There is still some difference between workers and and employees for example.
There is also the big picture issue of whether having won employed status and having PPE provided for them would enhance chances of employment. Would they be able to take suits with them between employers - the contract diving industry on very much supply and demand, if there's no demand there may be a lot of unemployed divers.
Whilst I agree with the point of what you are trying to achieve and whilst I wish you every success, I'm not sure that it may not be ultimately be counterproductive in terms of making the divers in the industry inflexible by being tied to one employer.
Ultimately the only way you are going to get a result on this either way is court action - let a judge decide - all we can do on this forum is offer an opinion, the employers will not take notice of opinion - even the HSE is not the ultimate arbiter, all they do is offer an opinion - the reality is that the judge decides.
As you have seen the HSE often goes down the route of "reasonably practicable" where it considers costs to employers - this is a legal principal that judges in H and S cases such as this are cogniscant of.
As I said - I wish you every success.
Otto

[Coldrop]

Derek

As I have already mentioned this is not an area I deal with, but my comments ( just personal thoughts) about divers being different to other personnel is the specialist ppe they wear, a £1000 suit plus accessories is a lot different to a pair of safety goggles and a pair of gloves you'd get on a construction site.

As for the rest of the question, Otto has answered far better than I could

[derek]

Jack, Thanks for the link, I’ll read and digest when I’ve time.

Otto, the employment status is complicated, but the briefs and IR tell me that it is ‘the manner to which that person is under the direction and control of the other party’. But we could argue which we have on this subject already, all day so I rely on the Lawyers opinion which the IR does agree with.
As for the lads loosing out on work because they are employed, not really it will just close down the cowboys and 50% of this industry is just that, cowboys.

Fair comment Coldrop it’s not your dept, but I worked at a nuclear power plant for one week a number of years ago and the cost of the PPE was not charged to me which included a diving suit and specialist clothing.
My mate is a fire officer and the PPE there is provided also at no cost to the employee, I’m sure I could add further industries where expensive PPE is provided.

Messy, the position is that main tools are ones the contractor does not provide. PPE has to be provided by the employer.

The advice we are given it to now complain to the CEO of the HSE and if that fails take it up with the union sponsored MPs.

Thanks for the input.
Derek Moore

[sidestep45]

I'm with the HSE on this one.
My reading of their position stated above is not that the employer can refuse to supply PPE but that where both parties agree, an arrangement can be made so that the employee would be compensated for the use of their own PPE. This recognises that blanket rules can penalise certain employers unfairly and that equitable agreements between two parties should be accommodated. This isn't a get out for employers but a display of common sense as the employer would still be resposible for ensuring that the PPE was suitable and sufficent.
Toby