Definition of work equipment under the Provision and Use of Work Equipment Regulations 1998


Hammond v The Commissioner for the Metropolis and the Metropolitan Police Authority: CA (Lord Justice May, Lord Justice Brooke and Mr Justice Eady): 11 June 2004



A number of fundamental questions arise from the facts of this case. These include:


- What is 'work equipment'?


- What is meant by equipment being 'provided' by the employer?



- What is meant by 'use' of work equipment?



The facts are straightforward. A mechanic was asked to repair a van that did not belong to his employer. In attempting to undo a wheel bolt with a knuckle bar and socket, the bolt sheared off and he fell, injuring his wrist. The Court of Appeal was asked to consider whether the van and/or the bolt on the van were work equipment within the confines of the Provision and Use of Work Equipment Regulations 1998 (PUWER).



Article 2(a) of the Directive 89/655/EEC defines work equipment as 'any machine, apparatus, tool or installation used at work'. This comprehensive definition does, according to the Health and Safety Commission's approved code of practice, refer to 'almost any equipment used at work'. The courts have readily adopted this width to include a variety of items as work equipment; such as a paving stone (Knowles v Liverpool City Council [1993] 1 WLR 1428), and cleaning materials used by a cleaner (Ralston v Greater Glasgow Health Board [1987] SLT 386). Interestingly, in Kelly v First Engineering Ltd [1999] SCLR 1025, the Scottish Court of Sessions held that a bolt was work equipment as it formed part of the 'apparatus' provided by the employer.



It is clear that the claimant was not employed by the owner of the van. He was simply there to repair it. It was, in effect, a private vehicle. Private cars are not classed as work equipment (see the code of practice to the regulations). How can an employer comply with article 4(2) of the directive in ensuring that 'throughout its working life, work equipment is kept by means of adequate maintenance at a level such that it complies with the provisions of article 4(1)(a) ...'? The employer does not have control of the vehicle. It may be the one and only occasion that the claimant has to work on it. The employer cannot train the worker in relation to his obligation under regulations 8 and 9. Importantly, under article 3(1) of the directive, the employer cannot 'select' the work equipment which he proposes to use at the work place. Additionally, regulation 10 of PUWER requires an employer to ensure that any item of work equipment complies with health and safety requirements.



Therefore, the Court of Appeal concluded that the employer did not 'provide' the work equipment to the employee. Worryingly, the lead judgment of Lord Justice May has a portentous reference to 'tools of the trade'. While indicating that this was not intended to be definitive but simply illustrative, it hints at a wish to limit the definition of work equipment to a labourer's tools and not the materials with which, or upon which, he works. Many pieces of 'apparatus' and 'installations used at work' would not readily fall into a definition of 'tools of the trade'.


In conclusion, the employer selects the work equipment to be used at the work place. He then has an obligation to provide health and safety information and training to the users and maintain the equipment throughout its life. In short, he has to provide the employee with the right tool for the job. There is a possible crack in this approach - namely regulation 3(3) of PUWER, but it seems to me that the 'control' referred to within the regulation can readily be interpreted as not present by an appellate court that is minded to restrict the apparently generous scope of both the directive and regulations.


While the Court of Appeal's use of the expression 'tools of the trade' is un-European in its potential limitations, the decision is one that the House of Lords will probably indirectly confirm when they have their first opportunity to look at PUWER and the capricious reasoning of the Court of Appeal, in hearing Searby v Yorkshire Traction in the coming months.



By Simon Allen, Russell Jones & Walker, Sheffield