Recent changes in the law make it seem that the government is no longer concerned about the health and safety of contractors. When the Deregulation Bill came into law on 1st October 2015, it meant that a select few self-employed people were effectively exempt from health and safety legislation.
Understandably, this has caused some concern and confusion. Labour unions and other pressure groups lobbied for clarification. The Institute of Occupational Safety and Health was concerned this deregulation could lead to a neglectful workplace culture – i.e. one focussed on cost rather than safety – especially amongst those businesses who work with contractors.
Behind the scenes, these lobbying efforts forced amendments through to ensure that those in high-risk sectors, or those whose work poses a risk to others, still have the same responsibilities as they did before the Deregulation Bill.
As a result, companies who work with contractors in the following sectors are still responsible for enforcing a positive safety culture:
Construction (including any work carried out on behalf of a designer, client, or another contractor)
Gas (any activity covered by the Gas Safety Regulations 1998)
Genetically modified crops or animals
Any other sector that poses a risk to other people. The Health and Safety Executive (HSE) website points out that a hairdresser using chemicals is a risk, meaning they and the salon still need to protect themselves and customers from hazards.
Some of these high-risk activities require staff and contractors to wear Personal protective equipment (PPE). But when should PPE be used?
When should you use PPE?
PPE is designed to protect the eyes, head, body, hands and arms, feet and legs, and in certain dangerous workplaces, the lungs. Wearing PPE is necessary when there is no other option. You’ve risk assessed, considered safer alternatives and come up with nothing: time to get the PPE out!
Once you put on a breathing mask, protective eye goggles, safety helmets or boots, it’s a sign that things are about to get real.
For contractors and employers, that means being extra careful when it comes to safety – even if a job will ‘only take a few minutes’, it’s never worth the risk. Batman would never wander Gotham City without his utility belt; the same goes when walking a building site – always wear the equipment that’s fit for the job you have to carry out.
It is worth noting that contractors are known variously across different industries; it is more common to hear the term “freelancer” in the outdoor industry, for example, but in terms of health and safety legislation there is little distinction between the two. Safe to say, any work carried out for your company by someone who is not on the company payroll may be deemed a contractor or freelancer, and may be considered a member of the “flexible workforce”, a term preferred by the FCSA (Freelancer and Contractor Services Association).
Who’s responsible for PPE?
When working with staff, you need to provide the equipment, which must be CE marked to show it complies with the Personal Protective Equipment Regulations 2002. Contractors need to show the PPE they are using is fit for purpose.
There are times when the contractor/employee line blurs, usually on building sites, when contractors and agency workers are, for all intents and purposes, employees. HMRC accepts this for tax reasons, since a degree of flexibility is needed in sectors where contractors are especially prevalent.
HSE, however, understands that hazardous work can involve wear and tear on the kit, which means that even if your agency staff turn up on day one with their kit, the hiring firm – effectively the employer in this situation – would need to pay to maintain and/or the kit.
Agency workers should have access to the same facilities and amenities as employees, which in a hazardous workplace means clean, well-maintained PPE.
Who’s responsible for training and compliance?
Even when contractors or agency staff are wearing kit supplied for them, they should always receive training, first and foremost, from their employer. Although you have on-site responsibilities, a contractor needs to ensure their staff can use PPE properly. The same applies to managers and supervisors: even if they aren’t using the equipment themselves, they should be able to identify unsafe use, or know when PPE needs repairs, cleaning or replacing.
Storage and maintenance is another area where the lines blur between contractor and client. When it comes to safety, common sense is usually the best solution.
Stick to the manufacturer’s maintenance schedules. Consult specialists when needed. Basic repairs should be done by the wearer, but anything more complex should be looked at by the manufacturer or an expert. Storage should be where it’s most convenient, but in a secure place, ideally far away from the hazards that make PPE a necessary precaution.
Complying with regulations is effectively a joint effort between contractor and the hiring firm. The contractor is responsible for training, ongoing staff development and supplying the kit, whereas the hiring firm ensures that training is working in practice, the kit is stored safely and maintained, and any incidents or faults are reported and fixed.
Despite recent changes to health and safety law, wearing PPE is necessary when staff or contractors are undertaking high-risk work. Responsibility for supplying the kit and training is the contractor’s job. Employers need to make sure it’s fit for purpose, risks are identified quickly and the kit is well-maintained, repaired and replaced as needed.
Any work that requires PPE is considered high risk, therefore not affected by the Deregulation Bill 2015 changes to health and safety regulations.
PPE is your workplace superhero costume: when there’s risks, get covered, even when the job will only take a few minutes. Better to be safe than sorry.
Contractors are responsible for their own kit and training. Once on-site, especially when they are agency staff, therefore effectively ‘employees’, maintenance, replacing kit and keeping everyone safe is the responsibility of the client.
Cutting corners, not reporting incidents or failing to act when repairs are needed are not worth the risk. Take a common sense, better safe than sorry approach whenever PPE is needed: this is protective gear that needs to be worn when there are no other options.
There are, however, five high-risk areas where PPE is also necessary, but employers and contractors should refer to a different set of laws for guidance:
The Control of Lead at Work Regulations 2002.
The Ionising Radiations Regulations 1999.
The Control of Asbestos Regulations 2012.
The Control of Substances Hazardous to Health Regulations 2002 (as amended).
- The Control of Noise at Work Regulations 2005.
How these laws impact the use of PPE, both for contractors and staff, is something we will cover in a future blog article.
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