HSC changes eight sets of Regs to allay EC criticisms

Regulations covering work equipment, first aid, display screen equipment (DSE), workplaces, personal protective equipment (PPE), manual handling, lifting operations and quarries have all been amended.

The Health and Safety (Miscellaneous Amendments) Regulations 2002,1 which took effect in September, clarify the UK's implementation of several European Directives and correct drafting problems. The changes maintain current standards, with the exception of changes to the Health and Safety (DSE) Regulations 1992, where the HSE expects benefits as well as some additional costs.

The DSE changes increase the number of workstations covered by the Regulations and may increase compliance among some temporary workers. Almost all business sectors will be potentially affected by, and need to become familiar with, the changes to the DSE Regulations.

The DSE Regulations needed to be changed to take account of a European Court ruling that articles 4 and 5 of the DSE Directive (90/270/EEC) cover all DSE workstations, not just those used by "workers" (defined as "users" or "operators" in the DSE Regulations). The change removes the reference to "users" and "operators" in reg. 3, so that all workstations must comply with the Regulations.

A second change to the DSE Regulations has implications for agencies that provide workers for other employers' undertakings: the agency must provide eye tests for its workers under reg. 5. The employer in control of the undertaking where the agency worker is working remains responsible under reg. 6 for providing health and safety training in the use of its DSE workstations.

PUWER anomaly

The Regulations also amend the Provision and Use of Work Equipment Regulations 1998 (PUWER) to give proper effect to the use of work equipment Directives (89/655/EEC and 95/63/EC). The HSE says that the problem arose because of its desire to avoid over-implementation of the Directives. Regulation 10 requires employers, on first providing equipment for use in the workplace, to check that it complies with the requirements of the relevant product Directives. These Directives set out "essential health and safety requirements" that must be satisfied before products can be sold in the European Economic Area.

Product Directives are not retrospective, but equipment provided for use before the product Directive applies, or not covered by a product Directive, must meet the requirements of regs. 11-19 and 22-29 of PUWER. These 17 regulations deal with the physical aspects of PUWER, such as the guarding of dangerous parts of work equipment. They do not apply when work equipment, as first supplied, complies with legislation implementing the relevant product Directive, as this would be a duplication of requirements. Where product legislation has not been complied with, PUWER can be used to correct the situation.

For example, one of the most important product Directives is the machinery Directive, implemented in the UK by the Supply of Machinery (Safety) Regulations 1992 (SMSR), which took effect for machinery first placed on the market after 1 January 1993. Where the SMSR apply and are complied with, the 17 PUWER regulations do not apply. But should a new machine be supplied without suitable guards, reg. 11, which requires employers to take measures to protect against contact with the dangerous parts of a machine, can be used to ensure the employer provides guards.

This caused a problem where an employer, after acquiring machinery that complied with the SMSR, removed the guards and exposed its workforce to danger. In such cases, inspectors could allege only a breach of PUWER reg. 4 (suitability) or, arguably, reg. 5 (maintenance) - a situation that was neither logical nor transparent. Inspectors were getting around the problem by alleging an offence under s.2 of the HSW Act, but this required them to produce a complicated explanation if asked why they hadn't proceeded under reg. 11. It also exposed the duty holder to unlimited financial penalties for a breach of the general provisions of the Act, rather than to a maximum penalty for a breach of the Regulations. More significantly, the Regulation was not giving proper effect to the requirements of the Directive.

The new Regulations amend PUWER reg. 10 so that employers must ensure work equipment conforms at all times with "essential health and safety requirements" that applied when it was first supplied or put into service.

More miscellaneous amendments

Other changes introduced by the Health and Safety (Miscellaneous Amendments) Regulations 2002 have been prompted by the European Commission, which convinced the HSE that they were needed to fully implement several Directives. The HSE describes its dialogue with the Commission as "friendly and constructive", but the threat of infraction proceedings could not be removed without amending the UK legislation. The HSE's legal advice was that the UK was unlikely to defend proceedings successfully; the amendments should resolve these concerns.

  • A second amendment to PUWER affects the hierarchy of guarding set out in reg. 11. This makes it clear that the provision of information, instruction, training and expertise is not an alternative to other forms of guarding, but is an additional requirement in each case.

  • The Health and Safety (First Aid) Regulations 1981, implementing parts of the workplace Directive (89/654/EEC), are amended to require that first-aid rooms are easily accessible to stretchers and other forms of equipment used to transport patients, and signposted.

  • The Manual Handling Operations Regulations 1992, implementing the manual handling Directive (90/269/EEC), are amended to specify the factors to be taken into account when determining whether operations involve risk. These are: the physical suitability of the employee to carry out the operations; the clothing, footwear or other personal effects being worn; the employee's knowledge and training; the results of any relevant risk assessment; whether the employee is within a group of employees identified as being especially at risk; and the results of health surveillance.

  • The PPE at Work Regulations 1992, implementing the PPE Directive (89/656/EEC), are amended to make it clear that in assessing the suitability of PPE: it must be appropriate for the risks involved, the conditions where exposure may occur, the time it is worn for, the ergonomic requirements and the state of health of the user, other PPE that may be simultaneously used, and the characteristics of the user's workstation. Where PPE needs to be hygienic and free of health risks, it must be provided for the sole use of the user. Employers must ensure that information necessary for the effective use of PPE is always available to users and must, at suitable intervals, organise demonstrations in the wearing of PPE.

  • The Workplace (Health, Safety and Welfare) Regulations 1992, implementing the workplace Directive (89/654/EEC), are amended so that employers must ensure the building housing their workplace has a structure suitable for the nature of its use. Also, any local overheating caused by the sun when working under a skylight or in front of a window must be avoided; and workplaces must be adequately thermally insulated. The Regulations now make explicit the requirement to address the needs of disabled people in the organisation of the workplace and incorporate the definition of a disabled person as it appears in the Disability Discrimination Act 1995.

  • Minor drafting changes have been made to the Lifting Operations and Lifting Equipment Regulations 1998 and the Quarries Regulations 1999, including changes that correct errors.

    1SI 2002 No. 2174, Stationery Office, ISBN 0110426932, £2 or free at www.legislation.hmso.gov.uk/stat.htm.