Duty to provide personal protective equipment

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Taylor v Chief Constable of Hampshire Police, [2013] EWCA Civ 496, [2013] All ER (D) 92 (May)

The recent case of Taylor v Chief Constable of Hampshire Police provides an interesting, and welcome insight into the duty of an employer to provide personal protective equipment to its employees.

Here, the claimant was instructed to clear a property of its Cannabis plants.  A risk assessment had been carried out, and the only notifiable risk was of irritation caused to the skin by the plants.  The claimant was provided with thin latex gloves as protective equipment.  In removing the plants, the claimant had begun to feel unwell, and opened a window in the property.  In doing so, the claimant sustained a laceration to her thumb.  No allegations of contributory negligence were made. 

The claimant won at first instance, and received £5,000 in damages.  It was held that her employer had failed to provide suitable personal protective equipment in the form of thick protective gloves.  The Chief Constable was found to be in breach of the Personal Protective Equipment Regulations 1992. 

The Chief Constable then appealed on the grounds that the risk was too small to be considered.  The Court of Appeal dismissed this argument and upheld the earlier decision.  It found that once a risk was identified, and where it was greater than de minimis, then an employer was under a duty to provide protective equipment to its employees.  This was the case unless, under Regulation 4(2), it could be shown that working procedures would provide equal or greater protection to the employee. In this case, the defendant was unable to demonstrate that it had a viable method for calculating risk or quantifying where it may occur. Guidance on what was deemed as suitable work equipment was found in Regulation 4(3).  As demonstrated in Threlfall v Kingston-upon-Hull City Council [2011] ICR 209, for equipment to be suitable it must be effective.  Thick protective gloves were deemed fit for purpose. 

The Court of Appeal also took account of that fact that the job the claimant had undertaken involved a range of tasks, many of which would have merited thick protective gloves.  It was felt that the 1992 Regulations would not have been properly implemented had the decision turned on a very narrow definition of the individual task the claimant was engaged in at the time of injury.  The risk was not so remote that the employer did not have to protect its employees against it. 

It was further held, in relation to burden of proof, that once it had been established that the defendant had indeed breached its duties towards its employee, it was for the defendant to show that the claimant would not have used the gloves, rather than for the claimant to show that she would have done.  The claimant had made use of the thin latex gloves available and therefore there was nothing to suggest she would not have done so with thicker gloves provided.