In Threlfall v Hull City Council  EWCA Civ 1147 the Court of Appeal overturned a decision by a judge that, where there was only a low risk of an employee suffering a laceration, an employer was not in breach of the PPE Regulations by providing light gloves which were not cut-resist
It was held that if a residual risk exists, the PPE Regulations are engaged, provided that the risk of harm is not so slight as to be de minimis or the nature of the harm so trivial that it should properly be ignored. Once it was found that there was a risk of injury which could not be adequately controlled by other means, and therefore that the PPE Regulations applied, there was no need to make any assessment of the frequency or gravity of the risk. The Court of Appeal held that effectiveness, under Regulation 4(3)(d), was at the heart of suitability of PPE. If PPE was not effective to prevent or adequately control a risk, it could never be suitable. The other parts of Regulation 4(3), in relation to appropriateness, could only arise once it was shown that there was a failure to provide an identified form of protection which the employer claims would not have been suitable, although effective, because it was inappropriate. In this case there was no such question as cut-resistant gloves would have been effective and there was no suggestion they would have been inappropriate.
Regulation 4 of the PPE Regulations, with some consideration of the requirements of the risk assessment under Regulation 6, provided almost a checklist as to suitability. It was not a general qualitative assessment. The judge had applied a common law test of whether the employer's actions had been reasonable in the circumstances and this approach was wrong in law.
Jane Clifton / 1st Dec 2010
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