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  • Writer's pictureRichard Moon

PPE: It's not just about Coronavirus

Updated: May 4, 2020

A few weeks ago, not all that many people would have heard of the term "PPE". Now it's part of the main headlines in the news, and trips off the tongue in everyday conversations.

Part of what makes Coronavirus so deadly is how contagious it is. It is spread through the virus being present in droplets expelled by infected people when they cough and sneeze. These can find their way to others either through the air, or indirectly when someone has for instance coughed into their hand and then touched a surface such as a door handle, where the virus can be picked up by someone else when they touch it.

Current WHO guidance is that masks should generally only be worn to protect against Coronavirus by those who have symptoms, and those caring for people suspected to have the virus. There may be good reasons not to wear them in other circumstances, such as that the masks themselves can carry the risk of contamination, and that wearing them may cause people to have a false sense of security, and to neglect other, more effective measures such as social distancing.

But PPE (personal protective equipment) isn't just confined to things like face masks, gowns and visors that are currently the subject of much concern, and isn't limited to biohazards like Coronavirus. The Personal Protective Equipment at Work Regulations 1992 have for many years regulated the provision of PPE where it is generally most needed, the workplace.

The PPE Regulations cover all sorts of situations where PPE may be needed, including not just exposure to hazardous germs, but also things like head protection such as helmets, eye protection like safety goggles, and hand protection such as protective gloves. Above all, the regulations require employers to regard PPE as a last line of defence, not the first. If someone can be taken out of harm's way, for example by preventing an object from falling or being ejected from a machine, that should be done. It is no good an employer saying they have provided good PPE if their workplace is full of unnecessarily dangerous machinery, or unsafely stored volatile chemicals.

Sometimes work means that exposure to a hazard is unavoidable, and PPE needs to be considered. PPE should be considered even if a hazard is normally well controlled, just in case the worst should happen. If it is provided, the employer needs to assess the need properly to make sure the right equipment is provided, and, for example, that the PPE doesn't make things worse by making an accident more likely. They have to ensure PPE is properly maintained and monitored - it is no good providing safety goggles if they are 20 years old, so scratched that you can't see out of them, and held together with sticky tape. Employees must also be trained in the use of PPE so that they know it is available and how and when to use it safely, and supervised to make sure they are using it as they should.

Whether the reported current shortages of PPE in healthcare and care homes will lead to an increase in claims for compensation in the future remains to be seen. Undoubtedly the Regulations require it to be used, and in general current issues appear to be that supplies are very short, rather than that they are actually running out, at least in hospitals. However, the Enterprise and Regulatory Reform Act 2013 changed the law so that breach of most health and safety regulations did not by itself give rise to a claim for damages. Instead, claimants can claim that a reasonable employer would comply with the Regulations because they have to, and breaching them is evidence of negligence. But a hospital might argue that if there were insufficient supplies of PPE, they had no choice. Negligence is a test of what a reasonable employer would have done in those circumstances.

I could imagine another difficulty in pursuing such a claim would be in showing that the virus was contracted at work, due to lack of PPE, rather than elsewhere. However, the courts have navigated similar issues in industrial disease cases, particularly those concerning exposure to asbestos. There, a claimant can't hope to prove that their work in a particular job has definitely caused their illness, rather than it being caused by asbestos exposure in another job, or even away from work. However, the courts have decided that a claimant only needs to show that their risk of illness has been increased by exposure to asbestos at work. One could imagine a similar line of reasoning being taken in cases of exposure to Coronavirus.

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