The Personal Protective Equipment Regulations 2022 (PPER 2022) came into force on 6 April 2022, extending the Health & Safety responsibilities of employers when it comes to providing free personal protective equipment (PPE) to take into account those who may be classified as “workers” and not just employees. These new regulations make it more important than ever to make sure you understand your wider Health & Safety obligations to the people who work for you – and what their employment status is.
What does the law say?
Under the Health and Safety at Work etc Act (HWSA) 1974, the Management of Health and Safety Regulations 1999, and other legislation, it’s an employer’s duty to protect the health, safety, and welfare of their employees and other people who might be affected by their business. As an employer, you must do whatever is reasonably practicable to achieve this. This means making sure that workers and others are protected from anything that may cause harm and effectively controlling any risks to injury or health that could spring up in the workplace.
What are the employment status categories?
Although businesses give lots of different labels to the people who work for them, from an employment law perspective they have to either be an employee, genuinely self-employed or – if they don’t fit either of those categories – fall into the third category of a worker.
Employee – Section 53 (1) of the HSWA 1974 defines an employee as “an individual who works under a contract of employment”. A contract of employment is defined as “a contract of employment or apprenticeship (whether express or implied and, if express, whether oral or in writing)”.
Self-employed – The HSWA 1974 defines a “self-employed person” as “an individual who works for gain or reward otherwise than under a contract of employment, whether or not they employ others”.
Workers – In employment law, there’s a third category of persons besides employees and the self-employed – category of “worker”. A worker can be hard to define because they’re normally found to be a worker because of what they’re not, rather than what they are. The best way to think about it is that they’re someone who provides work personally to the business who is not: either an employee of that business; or genuinely self-employed and in business on their own account. This category doesn’t exist under HSWA 1974. Other specific regulations, however, also place a duty upon a person in control of work, regardless of whether those affected are employees, self-employed, or workers (for example, the Construction (Design and Management) Regulations (CDM) 2015).
Defining the employment status of contractors and subcontractors – a messy business?
Subcontractors and contractors often can be thought of as self-employed when they could actually be seen as a worker or employees by the courts. The courts have shown a willingness to overlook the fact that a worker is described as “self-employed” if the other circumstances point towards employment.
It’s always worth seeking advice from our experts if you’re unsure because it could leave you exposed to costly tribunals if those “self-employed” individuals decide to claim employment benefits from you.
If you have any questions then please do not hesitate to contact us.
