If the glove fits … An employer’s duty to risk assess the need to provide protective equipment

James can be contacted at [email protected]

The Personal Protective Equipment at Work Regulations 1992 came into force on 1st January 1993 and have since then proved invaluable in ensuring that people at work are provided with suitable and effective equipment to protect them against risks to their health and safety. That equipment can range from safety goggles to waterproof clothing and failure to provide it can result in the employer being held responsible for a personal injury claim or even being prosecuted and fined by the Health and Safety Executive.
For an employer, there are two questions they must ask in deciding if Personal Protective Equipment (PPE) is needed. Firstly, is there a risk of injury to their employee and secondly, can that risk be avoided by anything other then PPE? If there is a risk which can only be avoided by PPE then “suitable” protective equipment has to be provided. What exactly constitutes suitable PPE should be decided by an employer following a risk assessment.
In a recent claim for personal injury a council worker, Mr Threlfall, cut himself on a sharp object which was hidden in a pile of rubbish. His employers, Hull City Council, had provided Mr Threlfall with gardening gloves to wear when clearing a garden of rubbish but in a decision that was much reported in the press the Court of Appeal found the council at fault as they had provided “the wrong type of gloves”. The case was presented in the newspapers as a ‘heath and safety gone mad’ type of story.. However, what was less well reported was the reason why the Court had reached thei decision.
When the council had looked at the work Mr Threlfall was going to have to do they carried out a risk assessment. They saw that no employee had ever suffered a cut when clearing gardens and so reached the conclusion that there was no risk of an employee being cut. By the council’s logic, if there was no risk of being cut then there was no need to provide gloves which would prevent an employee being cut, hence gardening gloves were chosen rather then cut-resistant gloves.
The Court of Appeal decided that the risk assessment was inadequate. The Council had no knowledge of what would be in the rubbish bags. There was a very real possibility that there may be sharp objects hidden in the waste being handled by Mr Threlfall and so the only way of controlling the risk should have been to provide “suitable” and “effective” PPE namely cut resistant gloves. Mr Threlfall needed gloves but gardening gloves were “the wrong type of gloves”.
The Court’s decision is far reaching because it means that for many employers, risk assessments which would previously have been sufficient could now be deemed inadequate. This is good news for people injured at work who wish to claim compensation. For employers, the ruling suggests that they should consider reviewing and updating their PPE risk assessments without delay to avoid being found similarly liable for an accident in the workplace which could have been avoided by more suitable PPE.

James McNally

James McNally

Dubbed by The Guardian newspaper as “the dog bite solicitor” James McNally is an expert in animal law. He is a previous winner of DASLS Young Solicitor of the Year and was named a “Pro Bono Hero” by the Attorney General.
James McNally

James McNally

Dubbed by The Guardian newspaper as “the dog bite solicitor” James McNally is an expert in animal law. He is a previous winner of DASLS Young Solicitor of the Year and was named a “Pro Bono Hero” by the Attorney General.

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