Personal Protective Equipment at Work Regulations will be amended from 6 April 2022 to ensure that agency and temporary workers ‐ so called limb (b) workers ‐ are provided with the same PPE protections as employees. Those who have self‐employed status are not included and the HSE has published interim guidance to help employers prepare.
The definition of self-employed here has created some confusion, with the guidance stating:
Generally, workers who come under limb (b):
- carry out casual or irregular work for one or more organisation
- after 1 month of continuous service, receive holiday pay but not other employment rights such as the minimum period of statutory notice
only carry out work if they choose to
- have a contract or other arrangement to do work or services personally for a reward (the contract doesn’t have to be written) and only have a limited right to send someone else to do the work, for example swapping shifts with someone on a pre-approved list (subcontracting)
are not in business for themselves (they do not advertise services directly to customers who can then also book their services directly)
Many in the sector may be unfamiliar with the definition of a limb (b) worker. Commenting on the guidance Ian Cole-Wilkins, CEO of Indigo, who have 15 years’ experience of providing subcontractor contracting services to the construction sector, advised that
“In the first place it is important to recognise that anything that improves workplace health and safety should be welcomed. FIS members may be unclear on the technical elements of the guidance published by the HSE and for good reason as the HSE appear to have merged [albeit with good intentions] the legal status of limb [b] workers and added to the mix S44 ITEPA esque considerations with their position of “those that are self-employed for legal and tax purposes”. They appear to have omitted the word “just” or “only” and not fully understood that you simply cannot invent a new class of “worker” without much wider consideration.
Despite the clumsiness, the intention is to be welcomed and I believe that they are primarily trying to ensure that the lower paid, predominantly agency workers who are engaged on hybrid models, don’t pay for PPE. Those that are truly self-employed, that can display there is no requirement for personal service, or there is lack of mutuality of obligation or there is no significant control will not fall within the PPER 2022 provisions. It is therefore important for FIS members to ensure they and their suppliers have assessed the status of their subcontractors and wider labour force in the correct manner. We would be glad to assist any FIS member with a free, no-obligation assessment of their workforce status to provide reassurance around compliance with the 6 April PPE requirements.”
FIS has provided additional guidance to support members in implementing this change here: https://www.thefis.org/2022/03/11/ppe-regulations-to-be-extended-to-all-workers/