How bad for you is 37 grammes of saturated fat?
According to recommendations from the US Department of Agriculture (USDA) in 1992, a normal diet should contain no more than 20 grammes of saturated fat per day.
Do you have any idea what 37 grammes of saturated fat looks like?
USDA research found that a typical medium-sized bag of film theatre popcorn contained that much saturated fat.
But unless you’re a nutritionist, the bare quantity ’37g’ might not be too great in convincing you of the riskiness of your movie-time snack.
Instead, USDA got their message across by highlighting the other foods which taken together would contain the same dosage of artery-clogging fat as the apparently innocent between-meals filler –
- A Big Mac with chips, plus
- A bacon and eggs breakfast, plus
- A steak supper with all the trimmings, equals
- 37g of saturated fat.
The scientific analysis of the popcorn amounted to a risk assessment.
USDA needed to get the hazardous results across to the public as clearly as possible.
Risk assessment is also required in the workplace.
If employers check for potential dangers in the workplace it can indicate measures that are needed to reduce or eliminate risks to their employees.
Providing personal protective equipment (PPE) is one way of reducing risks to workers. In this article, we’ll consider firstly what is PPE? Secondly, we’ll discuss when PPE is appropriate as a risk-reduction measure in the workplace. Finally, we will look at some examples of PPE issues in practice, including personal injury claims based on PPE failings.
1. What is PPE?
PPE covers a wide range of items.
So much so that we can’t come up with an exhaustive list.
But PPE would include the following items:
- Hearing protection (earplugs, mufflers and helmets)
- Head protection (helmets, caps, bonnets and hair nets)
- Protective clothing (overalls and high visibility clothing)
- Protection for the face and eyes (goggles, masks and face shields)
- Respiratory protection (filters, respiratory and diving equipment)
- Protection for hands and arms (gloves, risk protectors and sleeves)
- Foot and leg protection (shoes, boots, clogs, pads and gaiters)
- Skin protection (barrier creams and sun screen)
- Protection for the abdomen and trunk (jackets, belts and aprons)
- Personal fall protection (whether to prevent falls or arrest/break falls)
- Drowning protection (buoyancy aids, jackets and immersion suits).
Much of our current health and safety at work rules can be traced back to 1989’s European Framework Directive. The aim of the Directive was to introduce measures to encourage improvements in the safety and health of workers at work. It applied to all sectors of activity.
The Personal Protective Equipment at Work Regulations 1992 have been in force since January 1993.
They no longer give rise to direct civil liability in most situations. But breach of the regulations will be a strong indicator of negligence on the part of an employer. So there is potential liability at common law.
A failure to provide proper PPE which results in injury can lead to a successful personal injury compensation claim, as we’ll discuss further, below.
That covers what PPE is and why it is important for employers to provide it. Let’s go on to consider when PPE is appropriate.
2. When should PPE be provided?
You may think this is ‘obvious’ but it’s worth digging into the question a bit deeper.
The PPE regulations place a duty on the employer to ensure that PPE is provided to employees who may be exposed to risk to their health and safety.
Going back to what we mentioned above, risks have to be assessed.
The principles to be applied include:
- avoiding risks completely if you can;
- replacing the dangerous by the non-dangerous or the less dangerous; and
- prioritising collective protective measures over individual protective measures.
The last one is important where you’re talking about PPE because PPE is a protective measure for an individual.
It follows that, where a risk is found to exist, PPE is very much a last resort.
Employers have to provide PPE and training where there is a risk to health and safety which cannot be adequately controlled by other means.
So, for example, if you had a situation as an employer where you were concerned that employees might be exposed to a harmful gas, you would be expected to find ways to prevent the gas being produced – or escaping – in preference to, say, giving each of your employees a gas mask to wear.
Viruses and other sources of ‘germs’ are much more widespread, as well as invisible, which is why PPE tends to be an appropriate and required form of protection, say, for hospital workers and other carers. Collective protective measures can be applied (e.g. everyone washes their hands regularly) but they’re not enough to deal with the risks on their own.
How big a risk does it need to be to indicate the need for risk reduction measures?
It does not need to be very large at all.
The law has developed to interpret ‘risk’ as certainly meaning nothing approaching a probability (i.e. greater than a 50/50 chance of happening).
A foreseeable possibility of injury is all that is required to trigger an analysis of how you are going to eliminate – or at least reduce – the risk.
Having looked at what is PPE and the factors which employers are meant to take into account in assessing the need for PPE, let’s move on and look at some examples of PPE in practice.
3. Examples of deciding the need for particular PPE in practice
Probably the most dramatic illustration of PPE issues in practice comes from the 2002 case of Henser-Leather -v- Securicor Cash Services Limited. This is a decision of the England and Wales Court of Appeal.
Mr Henser-Leather was a business link employee. He collected cash from commercial outlets such as petrol stations. On the face of it, a potentially risky job.
The risk-reduction strategies his employers had put in place included:
- providing him with a smoke box (security smoke is a thermally-generated white fog, which hinders raiders as they try to access items to steal),
- providing a helmet with visor,
- instructing him to park his van as close as possible to the premises from which cash was to be removed, and
- instructing him that, if confronted by a robber, he was to cooperate fully.
But his employer did not provide him with any body armour.
One day at work he was leaving a petrol station with about £5,000 in his possession. Suddenly and without warning, he was attacked and shot in the stomach by an assailant. He survived but had to have a kidney removed, together with part of his liver. The bullet remained lodged in his spine.
He claimed compensation from his employers for his personal injuries and other losses.
The court said it had to decide whether the risk to Mr Henser-Leather of assault by deadly weapon was adequately controlled by the measures listed above.
The measures were not sufficient, in the court’s view. Body armour should have been provided.
In the court’s opinion, a risk could not be said to be ‘adequately controlled’ where it remained reasonably foreseeable that injury may result to an employee in the ordinary course of his or her employment.
Suitable PPE must be appropriate for the risks involved and the working conditions at the place where the employee is exposed to the risk.
- It must take account of ergonomic requirements (e.g. not impede moving and handling tasks in the job) and the state of health of the persons who may wear it.
- It must be capable of fitting the wearer correctly, if necessary, after adjustments within the range for which it is designed.
- It must be kept in a clean and hygienic condition and be of a design that enables good hygienic standards, unless it is disposable.
- It must be as light as possible without undermining design strength and efficiency.
- If more than one item of PPE is being worn, are they compatible? For example, does a particular type of respirator make it difficult to get eye protection to fit properly?
The employer cannot easily fob off onto the employee any decision about whether or not to wear PPE.
The PPE regulations require all employers to take all reasonable steps to ensure that any personal protective equipment provided to employees is properly used. This places a heavy onus on the employer to make sure that any PPE is used.
It’s not likely to be possible for the employer to argue that there has been no breach because ‘even if the correct PPE had been provided the employee would not have worn it’.
In the Henser-Leather case, at Bradford County Court (i.e. the stage before the case got to the Court of Appeal), this was a reason why the claim failed.
The judge was not satisfied that, even if it had been provided, Mr Henser-Leather would have worn body armour.
The Court of Appeal took the view that, as the equipment was not provided in the first place, the employer was in breach of duty and the question of whether Mr Henser-Leather would have worn it or not was not relevant.
As we all know, there has been criticism of PPE provided to NHS staff recently.
For example, a senior doctor at Southmead Hospital in Bristol alleged that the personal protective equipment most staff have been wearing while treating Covid-19 patients has been inadequate, which has led to many staff being ill and some being hospitalised.
Staff making initial assessments of patients were wearing gloves, a fluid repellent face mask and a plastic apron, as advised by Public Health England. More comprehensive PPE, including eye protection, face visors and long-sleeve surgical gowns were reserved for staff in intensive care who were treating high risk patients in need of oxygen or a ventilator.
Among the team assessing patients, more than half had had the virus, including some requiring hospital admission and intensive care. Whilst it would not be possible to prove conclusively that they contracted the virus due to contacts in hospital (as opposed to elsewhere) they saw a much higher infection rate than in the community generally. So it would be arguable that the probability would be that they acquired the infection at work in the hospital.
We’ve completed our trawl through what is PPE, when is it appropriate and how do all the assessment factors play out in practice. Let’s move to a summary.
PPE comes in all shapes and sizes. We’ve considered what the main types of PPE are. Most are well-known.
PPE should be regarded as a “last resort”. In other words, we should only be giving out PPE where other, generalised (rather than individual) risk-reduction measures can’t go far enough to provide protection.
Once employers decide what PPE is necessary, they have to train and encourage their staff to wear it. USDA clearly explaining the risks associated with popcorn cooked in coconut oil led to consumer avoidance, plunging sales and, soon after, an announcement by the US’s largest movie theater chains that they would stop using coconut oil in popcorn.
In a similar way, employers have a duty to educate employees about – and enforce the wearing of – PPE. The principal duty is not on the individual employee.
And, of course, the employer has to provide the proper PPE in the first place.
How we can help
We’ve tried to answer the question “What PPE duties do employers have?” and we hope we have covered what you wanted to know.
Should you have any further questions about anything mentioned in this article, please get in touch with us. All initial enquiries are at no charge and without obligation.
We’re keen to expand the content on this website as far as possible, so questions are always welcome. They allow us to answer them by adding to existing content or creating new content.
Call either of our accredited specialist personal injury solicitors (Marie and Peter) on 01343 544077 or send us a Free Online Enquiry. For related information, the ‘Accidents at Work’ page of this website can be found HERE.