The question
In the case of agency staff, can you advise who is responsible for the provision of basic non-task specific personal protective equipment such as hard hats, gloves, coveralls, eye protection, high vis vests, cold weather jackets etc?
These workers normally arrive on site with their own kit initially. However, my query has come about because a number of existing temporary agency workers are now coming to us and asking for kit to replace their own equipment, which has suffered “wear and tear”.
This has always been a bit of a grey area depending on whether the employer or the agency is deemed to be taking them on. But the agency’s position is that each individual is responsible for providing their own basic PPE and it does not provide them with any kit.
“…An employer cannot ask for money from an employee for PPE, whether it is returnable or not. This includes agency workers if they are legally regarded as your employees. If employment has been terminated and the employee keeps the PPE without the employer’s permission, then, as long as it has been made clear in the contract of employment, the employer may be able to deduct the cost of the replacement from any wages owed….”
So does responsibility rest on whether workers are legally our employees or not? Is this purely a health and safety issue or does it fall under the Agency Worker Regulations? If so, is it potentially a Day One obligation for employers or a Week 12 one and what are our legal obligations here?
The legal verdict
Esther Smith, a partner at Thomas Eggar
Agency workers will only be responsible for providing their own personal protective equipment if they are genuinely self-employed. (People who are self-employed for tax reasons, but who otherwise work in an employee-employer relationship will be regarded as employees for these purposes).
In all other circumstances, the law provides that employers must ensure suitable PPE is provided to all employees if they could be exposed to health or safety risks while at work, except where, and to the extent that, such risks have been adequately controlled by other means that are equally or more effective.
Employers must also ensure that PPE is maintained (which includes replacing or cleaning it as appropriate) in an efficient state, in efficient working order and in good repair.
This means that the ultimate responsibility for supplying and maintaining PPE to agency staff rests with their employer. As a result, provided that they are genuine agency workers, the responsibility will fall to the agency and not you.
That said, you still have a general duty of care in common law to those on your premises and you will be responsible for paying damages if they suffer any injury due to your negligence. Therefore, it is important that, if PPE should be made available, you ensure that it is indeed provided prior to workers carrying out the work in question.
Despite the fact that the provision and maintenance of PPE rests primarily with their employer, any issues involving agency workers now also need to be considered in light of the Agency Workers Regulations 2010.
Under these regulations, agency workers are immediately entitled to access the same facilities and amenities as employees who are hired directly by a given employer.
Although there has been no case law on this issue as yet, the definition of ‘facilities and amenities’ could be interpreted broadly enough to cover PPE – in which case, you would be in breach of the Regulations if you supplied PPE to your employees but not to agency workers.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
Under the Personal Protective Equipment at Work Regulations 1992, employers are required to provide suitable personal protective equipment to their employees.
If an individual is self-employed, it is their responsibility to provide their own equipment, although risks would still exist for you in permitting them to work without the necessary equipment – despite the fact that it is their responsibility.
There are also other regulations that apply to specific hazards, and employers’ obligations in relation to providing PPE under such regulations may be different.
You likewise owe specific obligations to pregnant workers that are not dealt with here and there may be other health and safety considerations that arise regardless of whose responsibility it is to provide appropriate PPE.
The difficulty with agency workers, meanwhile, is that they do not necessarily fit into the definition of ‘employee’ or ‘self-employed’. The agency appears to be adopting a position that would only be justifiable if the individuals concerned are, in fact, self-employed. However, this may not be the case.
The agency workers could be found to be your employees, which would mean that you would be both responsible for providing PPE and liable for any breaches if you have not done so.
Tread carefully
It is not possible to assess the situation on the available information, however.
As it is in everyone’s interests that agency workers have appropriate PPE, this is an issue that should be dealt with immediately and, I would recommend, with the benefit of legal advice.
It is very important that you clarify arrangements with your employment agency because leaving the situation hanging like this is dangerous to your business. Ideally from your perspective, it is the agency that would provide the PPE.
A risk in removing workers who do not have appropriate PPE now that they have raised this issue with you, however, is that they could argue they have suffered a detriment for making a protected disclosure under whistleblowing legislation.
As a result, you need to be careful how you (and the agency) handle the situation – even if it is found that providing PPE is ultimately the workers’ own responsibility.
The Agency Workers Regulations 2010 do not cover the provision of PPE, however, which means that they do not assist in clarifying the position here.
Adam Partington is a solicitor at Speechly Bircham LLP.
