Paper

Recent changes in United Kingdom Health and Safety legislation have for the first time encompassed the UK police service within the scope of the legislation. Consequently, a British Standards work programme has been established and has been developing product standards for PPE used in violent situations and associated training, to assist the United Kingdom Police Service to meet its new legislative obligations.

Health and safety policy statements issued by successive United Kingdom Secretaries of State for Defence have unequivocally stated that, irrespective of the existing legislative exclusions, the UK armed forces are nonetheless required to observe the requirements of health and safety law. With the military’s increasing involvement in worldwide peacekeeping missions, employing less-than-lethal and non-lethal tactics, there is commonality between the PPE used by the police and the military, and the developing suite of British Standards encompassing "Protective clothing and equipment for use in violent situations" are of relevance.

KEYWORDS: Health, safety, legislation, police, military, personal protective equipment, testing, certification, standards.


INTRODUCTION

Since 1989, UK National Health and Safety legislation has been influenced by the publication of three EU Directives concerning Personal Protective Equipment (PPE):

1. Directive 89/391/EEC [1], which introduces measures to encourage improvements in the health and safety of workers in their work environment ("the framework Directive")
2.  Directive 89/656/EEC [2], which addresses the mechanisms of supply and use of PPE in the workplace ("the use Directive").
3. Directive 89/686/EEC [3], which provides a generic list of minimum requirements for the protection afforded by PPE ("the product Directive").

In all three items of legislation, the Police and the Military are excluded from statutory compliance with their requirements. For example, Article 2, clause 2, of the framework Directive states:

• "This Directive shall not be applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it.
  
  In that event, the safety and health of workers must be ensured as far as is possible in the light of the objectives of this Directive".

Article 2 of the use Directive states:

•  "For the purposes of this Directive, personal protective equipment shall mean all equipment designed to be worn or held by the worker to protect him against one or more hazards likely to endanger his safety and health at work, and any addition or accessory designed to meet this objective.
  

  "The definition in paragraph 1 excludes:
  
  "Personal protective equipment worn or used by the military, the police and other public order agencies;"

Whereas Annex 1 of the product Directive states:

• "Exhaustive list of PPE classes not covered by this Directive
  "PPE designed and manufactured specifically for use by the armed forces or in the maintenance of law and order (helmets, shields, etc.)"
  The legislation appears to make quite clear that it does not apply to the military and the forces of law and order, and other public order agencies (e.g. French CRS). However, the second paragraph of Article 2, clause 2, of the framework Directive, above, should not be overlooked; neither should the provisions of Article 1 (Object) clause 3, which reads:
• "This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work"

CHANGES IN U.K. HEALTH & SAFETY LEGISLATION

It is on the basis of the permissive nature of this clause that in the United Kingdom, specific legislation was passed bringing the police service into statutory compliance. The "Police (Health and Safety) Act 1997" [4] and the "Police (Health and Safety) Regulations 1999" [5] brought the United Kingdom police service completely* within the scope of pre-existing UK legislation covering health and safety in the workplace (e.g. The Health and Safety at Work, etc. Act 1974 [6]), and the interacting Statutory Instruments implementing EU Directives, placing police officers in the same position as other workers under the health and safety legislation.

* Some aspects of activity and interaction with the public probably always were within the scopes of the various Acts and Orders, but this was not described with sufficient clarity.

Anecdotal evidence suggests that the majority of police forces had voluntarily observed the provisions of the Health and Safety at Work etc. Act since 1975, but their application was neither uniform nor consistent. Pressure for the creation of the Police (Health and Safety) Act came from two sources. First, the police service itself wanted to be covered by the health and safety legislation on a statutory basis. It believed that the extra discipline which would come with statutory compliance would lead to real improvements in the health, safety and welfare of police officers.

Second, the Act would enable the Government to implement more fully the series of European Union Directives on health and safety, which apply to all workers.
Under this new legislation, which forms an amendment to the Health and Safety at Work etc. Act 1974, and which is described as :

"An Act to make provision about the health, safety and welfare at work of members of police forces, special constables, other persons having the powers or privileges of a constable, and police cadets; and for connected purposes"

…police officers are for the first time treated in the same way as other employees in matters relating to health, safety and welfare in the work place. Amongst its wider provisions it also establishes the Police Federation of England and Wales and the Police Federation of Scotland as the recognised trade unions for the Police service.

Furthermore, new responsibilities are created for Chief Constables identical to those of "civilian" employers, where they are required to implement effective health and safety management systems. All police officers (including members of Special Constabulary sections) and civilian support staff equally have a legal responsibility to co-operate with Chief Constables in ensuring such systems are established and complied with.

HEALTH AND SAFETY POLICY WITHIN THE U.K. MILITARY

There is, however, no "Armed Forces (Health and Safety) Act" and no "Armed Forces (Health and Safety) Regulations"; consequently the military appear to remain subject of the specific exclusion. Nonetheless, the United Kingdom Ministry of Defence has embraced the provisions of the second paragraph of Article 2, clause 2, of the framework Directive.

In a policy statement dated 31 July 1997, and entitled "Health and Safety in the MOD" [7], the then Secretary of State for Defence, the Rt. Hon. George Robertson MP (now Lord Robertson, Secretary General of NATO), stated:

"…my policy is that the Ministry will: - within the United Kingdom, meet the requirements of the Health and Safety at Work Act 1974 (HSWA) or the Health and Safety (Northern Ireland) Order 1978 as applicable, comply with relevant subordinate legislation…Where MOD has been granted specific exemption from legislation, departmental health and safety standards and arrangements are to be introduced which will be, so far as is reasonably practicable, at least as good as those required by the legislation."

This policy was reaffirmed and refined, in a further policy statement dated 7 July 2000 [8], by the Rt. Hon. Geoffrey Hoon MP, Secretary of State for Defence.
The content of this document is little different to that of the July 1997 version. It introduces incorporation of the Ministry’s environmental protection policy, but health and safety policy statements are subject only to subtle changes. A comparison with the 1997 statement described above, shows these are as follows (partial extracts):

"It is my policy that, within the United Kingdom, the Ministry will:

• comply with the requirements of the Health and Safety at Work etc. Act 1974 (HSWA) or the Health and Safety (Northern Ireland) Order 1978 as applicable and with subordinate legislation and other relevant statutory provisions;
• comply with the Fire Precautions Act 1971 and all other applicable fire safety regulations;
• maintain fire safety management plans and fire risk assessments;
• maintain accident prevention plans and emergency procedures on all sites presenting a risk of a major accident to individuals or the environment

"Overseas, the Ministry will apply UK standards where reasonably practicable and in addition comply with relevant host nations’ standards.
"Where the Ministry has been granted specific exemptions, disapplications or derogations from legislation, international treaties or protocols, Departmental standards and arrangements are to be introduced which will be, so far as is reasonably practicable, at least as good as those required by the legislation. I will only invoke any powers given to me to disapply legislation on the grounds of national security when such action is absolutely essential for the maintenance of operational capability. Where there is no relevant legislation, internal standards will aim to optimise the balance between risks and the benefit to the Ministry and employees".

UNDERSTANDING THE REQUIREMENTS OF EUROPEAN UNION HEALTH & SAFETY LEGISLATION

There is a need now to understand how the broad requirements of the legislation covering supply and use of personal protective equipment (PPE) as a means of reducing risks to the health and safety of workers in the working environment.

The way in which the various items of legislation interact, and the demands placed on those who fall within their provisions, is as follows:

1. Article 6 of EU "framework" Directive 89/391/EEC establishes the responsibilities of employers to carry out risk assessments and to consider the PPE available in order to select PPE most suitable for the user and the conditions in which it is to be used.
2. The provisions of EU "use" Directive 89/656/EEC require that employers provide PPE, so identified as a result of the risk assessment, free of charge where there are risks to health and safety that cannot be adequately controlled by other means.
3.  All new PPE provided for use at work after January 1, 1993, must be in conformity with the requirements of EU "product" Directive 89/686/EEC and bear "CE" ("Conformité Européen") marking.

The three EU Directives are incorporated into UK law by a series of regulations, some of which interact with the earlier provisions of the Health and Safety at Work etc. Act 1974. In the case of both the framework and the use Directive, the Management of Health and Safety at Work Regulations ("MHSWR") 1992 [9], as amended by the MHSWR 1999 [10], are relevant.

The MHSWR 1999 Approved Code of Practice and Guidance [11] explains how a Risk Assessment leads to the identification of the need for preventive measures, the choice and specification of these measures, the recording of actions, and proof that the assessment and proposed actions are ‘suitable and sufficient’. Paragraph 31 in the ACOP refers to the use of external documentary sources to identify ‘good practice’. It is presumed that for PPE this implies that it meets at least the Basic Health and Safety requirements in Annex II to the product Directive, and in addition meets the requirements in specific Standards relating to the particular identified hazards, risk levels and uses. Any lower level of performance would need to be justifiable. These are duties upon employers not PPE manufacturers.

PERSONAL PROTECTIVE EQUIPMENT FOR THE POLICE

As explained above; amongst the health and safety systems which employers are legally obliged to implement, the Personal Protective Equipment at Work Regulations 1992 [12] require employers to carry out a risk assessment, and where this determines that exposure to risk of injury cannot be prevented by other means, the employer is required to supply the employee with Personal Protective Equipment free of charge.

The Police (Health and Safety) Regulations 1999 address this very issue:

"The Personal Protective Equipment at Work Regulations 1992 are amended so that where there is an inevitable conflict between the exercise of police powers and an employer’s duty to ensure that suitable personal protective equipment is provided to employees, the duty shall be complied with so far as is reasonably practicable (regulation 4)"

An explanation of the purpose of this clause is that an officer may, when off duty, be faced with a situation where they are required to use their powers as a constable to effect an arrest. In such circumstances, when the officer is not under the direct control and supervision of their commanding officer, they will not be wearing the PPE with which they are issued when on duty. Nor will they be carrying work equipment such as batons, handcuffs or incapacitants to assist them to effect an arrest. Furthermore, without radio communication with colleagues, they will be unable to summon immediate assistance should the need arise.
In such circumstances, it can be foreseen that the probability of injury to the officer is higher. Yet it would be as unreasonable to hold their employer accountable for failing to take adequate precautions to prevent injury occurring in the scenario described above, as it would be to expect police officers to be at all times attired in their work clothing, including all PPE and work equipment. The regulation is intended to interpret the common sense perspective in the interaction of health and safety law with the peculiarities of police work.

When on duty, however, it is quite clear that police forces are required to issue their officers with PPE where a risk assessment has determined that a risk to health and safety cannot be sufficiently mitigated or prevented by other means. Again, common sense suggests that where a spontaneous escalation in public disorder occurs, it is unreasonable to expect police officers to be wearing a full complement of PPE. This may also be the case where an operational policy decision has been made to adopt "low profile" policing. However, where intelligence sources have yielded information of planned public disorder, failure to equip officers deployed to deal with an escalation in hostilities with personal defence shields, helmets, visors, limb and body protectors and other PPE as appropriate, may be indefensible in subsequent litigation should an officer sustain injury. (It is, of course, unlikely that any U.K. police force would knowingly place unprotected officers at such risk).

POLICE AND MILITARY EQUIPMENT AS PERSONAL PROTECTIVE EQUIPMENT

It is considered that any device worn on the body or held in the hand that is intended to reduce pain or injury from accidental or deliberate impacts sustained during violent situations, defence duty or training is Personal Protective Equipment within the meaning of current legislation in the United Kingdom and the European Union - not just impacts and stabs, but chemical, fire, biological hazards as well, not to mention drowning, inconspicuity, and ambient effects.

Protective equipment traditionally supplied to the police and military may be purchased and used for purposes other than those envisaged by the manufacturer. In these applications which cannot be foreseen, the products may or may not be ‘Personal Protective Equipment’.

The distinction between a specific example of a PPE product type designed and manufactured specifically and exclusively for use in the maintenance of law and order or in military applications, on the one hand, and the same product marketed for use in training, or to user groups not engaged in the maintenance of law and order or in military operations, on the other hand, should be noted. In the first case the product may be within the specific exclusions in those uses, but in the latter cases it is not within the exclusions; but since Directive 89/686/EEC relates to "products", and not "uses", its provisions apply to any and every product that is not wholly excluded. Thus if one example of a design was used outside the exclusion, that design, its manufacture and its marketing would be covered by the provisions of the product Directive, with its supply and use covered by the provisions of the use Directive.

An allusion to the extension of CE marking to all consumer PPE might be useful. Sports goods are used in some police and military training. They have to be CE marked as they are not specifically for excluded uses. If the police purchased, and issued for use, unmarked sports goods, their suppliers could be acting in contravention of the Directive. The risk faced in adopting use of such sports equipment, however, is that its protective performance may not be adequate for the risk scenarios faced by police and military users. A means of evaluating the protective performances of these PPE products, which is relevant to the use scenario is essential.

BRITISH STANDARDS FOR POLICE PPE

The British Standards Institution (BSI) is now the world’s leading standards and quality services organisation. Formed in 1901 and incorporated under Royal Charter in 1929, BSI is the oldest national standard-making body in the world. Independent of government, industry and trade associations, BSI is a non-profit distributing organisation. BSI is globally recognised as an independent and impartial body serving both the private and public sectors. Today, BSI has a turnover of nearly £182 million and employs in excess of 3400 people within its operations across 90 countries, including the USA, the Far East and Europe.

Operating from its corporate headquarters in Chiswick, West London, BSI is responsible for co-ordination and promotion of UK input to the development of standards, both national and international, and for their production and delivery. It works closely with manufacturing and service industries, trade organisations, user groups, technical and scientific advisers, government agencies and laboratories to facilitate the production of standards.

In the last year some 1400 new and revised standards were published, as well as over 1700 draft standards for public comment, almost all of which were prepared within a committee framework made up of a wide range of interest groups representing industry, consumers and Government. BSI supports some 3000 technical committees and working groups encompassing over 16,000 standards projects, as well as being responsible for the training of many thousands of committee members.

The well-established BSI committee process is democratic and transparent. Each committee is required to follow proven guidelines on conduct. Debate is open, full and decisions are reached by consensus.

After drafting in committee, standards are further laid open to public consultation, where interested parties outside the committee process are provided with the opportunity to submit written comments upon the content of the document. Each and every one of these comments is then reviewed by the originating committee and either accepted, with the standard amended to reflect the content of the comment, or rejected, with the person submitting the declined comment receiving a detailed explanation of the committee’s reasons. Each and every one of the many thousands of British Standards which have been published has been prepared according to this tried and tested approach.

Major work programmes recently included participation in the revision of the ISO 9000 series of quality management standards, due for publication in 2000. BSI is also playing a critical role in the review of the ISO 14000 series of environmental management systems standards. Given that the ISO 14000 international standard is based upon the former British Standard BS 7750, and that the UK has the world's longest established registrations, it is right that BSI should bring its experience to bear in this important area.

The production of standards at the international level remains dominant, particularly through ISO (the International Organization for Standardization), and is forecast to continue to do so. British Standards continues to represent UK interests at these international fora to ensure that the standards drafted meet the requirements of UK based businesses.

The last twelve months has seen a transition in the development of standards. In the past standards development at BSI has focused on producing standards for things, increasingly BSI is now involved in developing standards for making things happen, such as standards in the service sector. The publication of standards or codes of guidance for areas such as Door Security Supervisors (commonly known as bouncers), CCTV (close circuit television) and a standard for handling customer complaints, attracted considerable media attention.

To assist the United Kingdom Police Service to comply with the new legislative obligations imposed by the Police (Health and Safety) Act 1997 and the Police (Health and Safety) Regulations 1999; in September 1998 the British Standards Institution established a technical subcommittee – PH/3/12: "Protective clothing and equipment for use in violent situations" - to prepare British Standards for the PPE used by the police and other employees at risk of violent confrontation in the course of their duties (e.g.: prison officers, security personnel, secure hospital staff, couriers, airline crew, etc.).
PH/3/12 counts, amongst its membership, representation from seven police bodies (including the Association of Chief Police Officers, the Police Federation and the Police Scientific Development Branch) and the Ministry of Defence. Liaison status has been established with the police science departments of the American, Australasian and Canadian governments. The remainder of the membership includes representatives of industry, product testing facilities, certification agencies, academics and other experts.

The PH/3/12 work programme has been separated into a series of Project Groups, each of which is formed by the core experts on a specific product type or group. Project groups have been established to prepare British Standards for:

• Personal defence shields
• Limb protectors
• Torso, abdomen and genital protectors
• Clothing
• Gloves
• Footwear
• Technical co-ordination and cross-product compatibility.

A standard providing guidance on selection and use is under preparation, and a project recently commissioned will see preparation of a British Standard for training and simulations suits.

Members of PH/3/12 have given lengthy consideration to the further implications of the Police (Health and Safety) Act 1997, and the majority interpretation of the legislation is that the requirements of the product Directive apply to the PPE used by the United Kingdom Police Service. This interpretation has been discussed at length with the relevant Government department (see below).

British Standards prepared by PH/3/12 will consequently follow the model provided by, and address and satisfy the Annex II Basic Health and Safety Requirements of, the product Directive - as incorporated into UK law under the Personal Protective Equipment (EC Directive) Regulations 1992, S.I. 3139 [13] ("the PPE Regulations") - and therefore support CE marking of police PPE.

British Standards prepared by PH/3/12 will therefore identify "good practice" by evaluating the protective performance of PPE, and by stipulating what the minimum acceptable level shall be. Selection and use of products conforming to British Standards will denote that "suitable and sufficient" actions have been taken to reduce or prevent risks to health and safety of workers at work.

The added value provided by the British Standards prepared by PH/3/12 will also be reflected in areas not immediately obvious or apparent. These factors include:

• creating a level playing field in tendering and supply;
• the elimination of excessive protection that is not needed;
• setting of performance requirements which are independently specified and publicly scrutinized (e.g.: BSI public consultation process);
• testing facilities available through independent accredited bodies (also introducing competition in pricing of testing and certification fees);
• weak points that are rarely hit in practice, tested never-the-less;
• confidence amongst standards users that "elephant traps" have been identified and circumnavigated;
• confidence amongst standards users that protection is actual, not statistical;
• quality control of production within batches, and between batches in the long term;
• possible adoption and use as qualification criteria for , e.g., BSI "Kitemarking" product accreditation and quality surveillance;
• providing a means of evaluating manufacturers' claims;
• providing a reference point for application of The Control of Misleading Advertisements (Amendment) Regulations 2000 (SI 2000 No 914) [15];
• establishing baselines against which to analyze occupational health records and accident data.

The prerogative of specifiers, purchasers and users to subject products to their own assessment procedures is in no way diminished by the existence of British Standards. However, for them to continue to do so would not be the most effective use of British Standards.

British Standards will deal with certain of the more onerous aspects of product assessment. For example, the costs and logistical aspects of achieving conformity assessment become the responsibility of the supplier, and not a duty and cost which the purchaser is compelled to address. By the process of outsorting unsatisfactory products through the testing process, user groups can concentrate their attention on other aspects of the evaluation and procurement process which fall outside the standards remit (e.g.: reliability of supply, financial stability of suppliers, costs, etc.).

The preparation of British Standards for protective clothing and equipment used in violent situations, and associated training, is a development the significance of which cannot be understated, and which will become more apparent as the benefits of the standards start to accrue.

THE ANNEX 1 EXCLUSION AND PPE FOR USE BY THE POLICE

It is known that there are cases where the Annex 1 exclusion of the product Directive (see also Article 2(c) of the use Directive) definitely does not apply to PPE primarily produced for use by the Police and military - in any of the EU or EFTA states. For example, civilian employers and their employees, such as prison officers, private security personnel, bullion handlers, escorts and couriers, often select items of PPE like shields and limb protectors from ranges used by the Police. Their Risk Assessments have identified these products as likely to provide adequate protection against the hazards to which they may be exposed, and this is because the hazards will generally be similar in severity/nature/type to those faced by police officers.

Whilst Annex 1 of the product Directive specifically excludes PPE for the police from mandatory compliance with its requirements, its provisions appear to be permissive, and therefore do not bar manufacturers or their agents in the community from voluntarily conforming with those requirements. It has been observed that manufacturers who do not wish to comply argue that those who do are gaining an unfair advantage, and that they should be obstructed by all means, fair and foul.
Whatever explanations some manufacturers may resort to in order to justify their own lack of compliance with the legislation, the legislation is quite clear in this regard: all PPE supplied to civilian employees must be in conformity with the requirements of the product Directive. Therefore a prudent manufacturer or supplier of equipment to the police would almost certainly find it expedient to conform to the Directive in case any of their products was used in a non-exempt situation. If such use is foreseeable there is no doubt the products should be CE marked.

Furthermore; with regard to the specific exclusion for "PPE designed and manufactured specifically for use by the armed forces or in the maintenance of law and order" listed under Article 2(c) of the use Directive; it is interesting to note that "equipment used by emergency and rescue services" is also specifically excluded under Article 2(b), yet CEN standards are available for fire-fighters’ protective clothing (e.g. EN 469, EN 659, EN 1486) and CEN work items have also been issued for development of chemical and biological protective clothing for use by emergency teams. Conformity with the requirements of these CEN standards has been used to make available products of these types, for the protection of these users, bearing CE marking. (This will surely be due to employment legislation requiring even firemen to be protected like all other employees. They are not covered by any exclusions as far as I know).

Looking again to Regulation 4 of the Police (Health and Safety) Regulations; since a number of suppliers of personal protective equipment are already able to provide the police service with PPE bearing CE marking (e.g.: personal defence shields, gloves, footwear, riot helmets and limb protectors), this demonstrates that "so far as is reasonably practicable" can be considered as nothing less than full compliance with the requirements of the product Directive and the PPE Regulations.
As stated, the membership of BSI PH/3/12 has considered this issue at some length and has taken the decision to ensure that, within its standards, the requirements of the product Directive and the PPE regulations are complied with. The efficacy of the resultant standards is enhanced by this approach, and the CE marking issue is in fact peripheral to the main thrust of the standardisation work programme.

There has been discussion on this issue with the Department of Trade and Industry Standards and Technical Regulations Directorate (STRD4), who are the lead agency where categorisation of PPE within the scope of the product Directive and PPE Regulations are concerned.

DTI STRD4 do not share the view that the Police (Health and Safety) Act or the Police (Health and Safety) Regulations make mandatory the requirement that PPE for the police should comply with the product Directive and PPE Regulations, and bear CE marking. Their interpretation and resultant advice is that the specific exclusion in the product Directive and the PPE Regulations is unaffected by the police health and safety legislation.

These are contrasting interpretations of the situation with regard to the classification, within the scope of both the product Directive and PPE Regulations, of PPE used by the United Kingdom police service. It is not disputed that in other EU and EFTA States, where similar police health and safety legislation does not exist, the specific exclusions remain valid. However, since the use and product Directives cascade from the framework Directive, the terms of the specific exclusions in all three Directives have been interpreted as permissive, and not mandatory (were this not the case; for example, the health and safety policy statements issued by successive U.K. Secretaries of State for Defence would be in contravention of national and EU law). If the specific exclusion in one Directive, relating to one employee group, can be superseded, it seems both an illogical and inconsistent application of both EU and UK law that the identical exclusions for the same employee group and their protective equipment in the other two Directives are not similarly subject to change.

The true extent of legislation is not defined by civil servants in government departments, however, or by members of standards committees – this task is the province of the judiciary alone.

There is currently no case law to determine which contrasting interpretation is correct, therefore it will be for the courts to decide the true extent of the legislation with regard to PPE for the police. A legal precedent in the United Kingdom means interpretation of an Act can hinge on the precise words used by the ministers introducing it as a Bill in the House of Commons and the House of Lords. It is important to the courts what the Act was meant to achieve, even if its application has become distorted. In this regard, the Hansard reports on the second readings of the Police (Health and Safety) Bill in both Houses of Parliament may be relevant, since specific reference is made to the product Directive. Were it considered that the product Directive’s provisions were not to apply – and the specific exclusion to remain in force – then it is presumed this would have been clearly stated in both Houses, and reflected in the resultant wording of the Act.

Until a definitive legal ruling in respect of this issue is rendered, the differing interpretations of both the BSI PH/3/12 membership and DTI STRD4 should be viewed as equal in terms of status and credibility. Those affected by the legislation concerned may consider the merits of the conflicting viewpoints and arrive at their own decision whether or not to select PPE bearing CE marking. A decision to do so may be made on the basis that legislation appears to require its selection. Alternatively, the decision may be made on the basis of the "added value" provided by such products.

But irrespective of the final legal analysis, the approach taken by PH/3/12 is considered to represent the best value which can be achieved for the benefit of all users of British Standards for protective clothing and equipment used in violent situations and associated training.

THE IMPACT OF THESE LEGISLATIVE CHANGES ON SELECTION AND USE OF PROTECTIVE EQUIPMENT BY THE MILITARY

As discussed, whilst the UK police service now falls within the scope of, arguably, all the safety legislation described in this paper, the specific exemption for the military remains unaffected. It is apparent, however, that military purchases of PPE bearing "CE" marking have been taking place for some time, both in the UK and overseas. This is inevitable given that both the police (the main market for whom the PPE in question was produced) and the military often fulfill similar peacekeeping roles.

Use of such protective equipment has now become an ever more important and regular part of military operations in recent years; for example, whilst maintaining public order in areas such as Somalia, the Balkans, Northern Ireland and, most recently, East Timor. There is no doubt that United Nations peacekeeping operations are an obligation here to stay.

Further consideration should perhaps be given to the health and safety implications which may arise as a result of injuries sustained by soldiers engaged in these peace keeping operations. Some of these do not count as active service so do not attract the same pensions for dependents. Do exclusions apply to non-active service? Would a class action brought by injured personnel succeed if CE marked PPE had not been issued where a risk assessment would have shown PPE was needed? Consider also the implications of an action brought on behalf of a soldier (or his wife) if he suffered castration or penal amputation from a kick on a non-CE marked box, issued as part of riot control kit, which had shattered catastrophically.

It is known that the United States Department of Defense (DoD) conducted a major review of their PPE in 1998 after numerous injuries were reported after Somalia, Haiti and Panama. Under their Soldier Enhancement Program, the DoD tasked Soldier Systems Command (SSCOM) at Natick to review PPE and a number of fundamental changes were made. These are reviewed on the SSCOM (http://www.sbccom.army.mil) website under Civil Disturbance Protective Gear (CDPG) and it is interesting to note that one of the selected items of equipment was, by performance, a British PPE product. Military agencies world-wide are conducting similar reviews and the author is corresponding with Systems Managers in numerous other NATO countries. The Australian Army similarly reviewed their PPE obligations and re-equipped prior to the East Timor operation.

Military personnel seconded to civilian duty in times of crisis (e.g.: ‘Green Goddess’ crews during the firemens’ strike; possibly military personnel in environmental relief – floods etc.) might fall statutorily under the Health and Safety at Work, etc. Act or the amendment. It could depend on the wording or even punctuation of the legislation or Order under which they operated, the powers that they were given, or the powers of the command structure they answered to. The only safe course is to already have an appropriate safety system and marked equipment.

Peacekeeping and civil disturbance strategies are new to the world’s military, and apart from considering new PPE, re-training and new tactical doctrine is needed as well as utilising less-than-lethal options to prevent escalation to a point where use of lethal force is inevitable.

Military equipment is usually purchased after a tendering process following publication of a specification. Tender and production samples are normally tested ‘in house’. All stages are within the military organisation even if specifications and test methods from published Standards are used. Both the 1997 and 2000 MoD policy statements also covered the issue of equipment procurement, with the text of the latest version reading as follows:

"In the procurement of materiel (sic) and equipment of all kinds, safety and environmental management is to begin at the requirement definition stage and is to be carried forward through service to disposal. All aspects of maintenance and operation (including military service) are to be taken into account and particular care is to be taken in assessing risks and environmental impacts where there is no appropriate statute or equivalent civil practice".

Where the role and function of the military in peacekeeping duties is comparable to that of the forces of law and order, the military PPE selected may equally be comparable. In such circumstances, appropriate statutes or equivalent civil practices may manifest themselves in the form of products conforming to the requirements of British Standards.

MILITARY STANDARDS FOR PPE

There is every indication that the policy statements issued by successive Secretaries of State for Defence are yielding positive changes and improvements.
One clear indicator is the selection of type-approved and CE marked leather clothing by the MoD police motorcycle patrols (who also fall within the scope of the UK police health and safety legislation). "Personal protective equipment for means of road transport" is subject of another specific exclusion cited in the use Directive (Article 2 - "Definition" - clause 2(d) refers). In the context of the motorcycle clothing issued to civilian and MoD police, this is interpreted to mean that there is no requirement for them to be issued with PPE meeting the requirements of the product Directive. Nonetheless, a decision has been made to adopt use of PPE bearing CE marking; one possible influence being that this is the most effective way of addressing the requirements of the policy statements.

Another indicator is the recent announcement that a pilot study is to be undertaken by BSI and MoD to assess the ease and value of converting Defence Standards into British Standards for civilian use. Some 1400 Defence Standards are maintained on a seven-year cycle, and the importance of standards to MoD is beyond doubt. It will be interesting to what conclusions are drawn by the pilot study, and what other benefits which the process may also provide, in return, to the MoD are identified.

Despite these positive occurrences, there is nonetheless no room for complacency. During a recent assessment of the public order equipment issued to serving soldiers in Northern Ireland, it was noted with grave concern that they were being deployed in standard "Combat Soldier 95" (CS95) outer clothing, which is a blend of polyester and cotton and has no flame-retardant properties, despite the extreme risk of soldiers being subjected to petrol bombings. Orders that the limited protection afforded by CS95 shall be supplemented by use of natural fibre long sleeved vests and leggings are at odds with standard issue of poly-cotton underwear.

The helmet issued for public disorder operations featured a cover of polyester-cotton DPM cloth, reinforced with man-made fibre webbing. The rubber visor seal – fitted to prevent flammable liquids flowing between the shell of the helmet and the visor – was consequently incapable of providing an effective seal. Gloves did not feature any form of impact energy-attenuating materials to the backs of the hand. Standard combat footwear had been issued. It is not known whether the design seen compels flammable liquids to flow off the foot, rather than into the boot.

The standard of protective clothing seen did not appear to provide the level of protective performance appropriate to the risk environment in which it was intended to be used (an analogy could be drawn with failure to supply suitable, thermally-insulating protective clothing for Arctic training exercises). It certainly did not bear comparison with the flame-resistant clothing, padded gloves, footwear and helmets (with effective visor seal) issued to the officers of the Royal Ulster Constabulary. Is it logical that, in operational deployment, the R.U.C. withdraws its officers when the risk escalates to a level deemed too extreme, and the army steps in with soldiers wearing significantly-inferior PPE?

It therefore appears that, at the moment, in the comparatively "controlled" environment of public order training, soldiers are not being provided with adequate protective clothing. In the comparatively "chaotic" circumstances of operational deployment, the risk of injury is increased unnecessarily, and it is to be hoped that this is a situation which is listed for early correction.

SELECTION AND USE OF PPE AS A BARRIER TO LITIGATION

Selection, specification and use of PPE bearing CE marking can provide a significant barrier to vexatious litigation. If a product so accredited failed to provide adequate protection, its conformity with the original technical specification could be easily assessed. Non-conformity would place liability firmly back in the lap of the manufacturer.

A challenge to the efficacy of the technical specification would place the certification body in the spotlight, and they would be required to justify their use of the technical specification by explaining how it addressed the Basic Health and Safety Requirements of the product Directive. In both scenarios, the exposure of the employer who selected the equipment would be reduced.

Where conformance has been determined by use of PPE standards, these provide a high, though not absolute, level of defence against litigation, since conformity with official, published standards is often cited as a defence in legal actions.

In this regard, two clauses from BS 0-1:1997 ("A standard for standards - Part 1: Guide to the context, aims and general principles") [14] may be of interest:

"3.3.3 Duty of care

BSI owes a duty of care to all those who rely on its publications, whether directly or indirectly. It remains the responsibility of users to ensure that they select standards which are in all respects appropriate to their needs and that they use them appropriately.

3.3.4 Legal recognition (partial extract)

That a standard has been prepared and approved in accordance with BS 0, especially with regard to consensus (see 2.3 and 6.3), should enable any interested parties to assert in legal proceedings that it embodies agreement between all interested parties on what is mutually acceptable. On the same basis, courts have discretion to admit the relevant standard as evidence, and so to take account of it in giving judgement"

Case history shows that by demonstrating all reasonable care has been exercised by equipping employees with satisfactory protective equipment, employers have been able to defend personal injury claims. One anecdotal example concerned an employee who was hospitalised due to an infected blister on his heel, apparently caused by his safety footwear. He subsequently claimed significant compensation for loss of earnings and distress. The footwear was examined and found to be satisfactory. It was not defective in any way, it simply did not fit his particular foot. The complaint was rejected.

CONCLUSIONS

The United Kingdom police service is now subject to the same statutory provisions of health and safety law as all other employers and employees; however, whilst remaining specifically exempt from the requirements of the legislation, the U.K. Ministry of Defence have chosen to adopt a position of voluntary compliance.

The preparation of authoritative product standards, through the respected and proven British Standards process, against whose requirements PPE can be assessed, will prove beneficial in ensuring conformity with the requirements of the legislation, and a better defence in personal injury litigation than is provided by alternative product assessment regimes. The adverse effects of frivolous and vexatious actions, which divert resources away from essential, productive activity, will be reduced or avoided.

Selection and use by the military of products which have been independently tested and approved – including that of PPE bearing CE marking - is already taking place and is likely to increase. This may occur "by default", as a result of the selection of such products which have been produced for use by the United Kingdom police service; and where the CE marking process has been followed in addition to conformity assessment according to British Standards produced by BSI subcommittee PH/3/12. Equally, a conscious decision may be taken to incorporate such a requirement in invitations to tender.

An example of this was the tender for the supply of riot shields to the Hong Kong police, which clearly stated that preference would be given to those products in conformity with the requirements of the European legislation and bearing CE marking. I am not aware that Hong Kong is an EU or EFTA Member State!

Whilst unit costs of products not providing adequate protection may face increases, as their specification is upgraded to meet the requirements of standards, costs of "state of the art" PPE may be unaffected. The cost of testing and certification need not significantly affect unit costs, and may be absorbed by the manufacturer. Purchasers will enjoy the benefits of a recognised mark of fitness for purpose, with price increases either minimised or rendered unnecessary. End user confidence in their PPE will similarly be enhanced by the presence of a recognised mark denoting fitness for purpose.

The American and Australasian police science services have indicated their intention to take British Standards produced by the PH/3/12 subcommittee, and to "fast-track" these into National standards for their own police services. Finally, the US military are re-equipping with personal defence shields bearing CE marking following dissatisfaction and incidences of injuries experienced arising from failure of their previous equipment.

Selection and use of PPE provides a useful means by which injuries to employees can be reduced; and where the threat exceeds the capability of the PPE to protect the user, can establish that the employer satisfied their reasonable duty of care obligations.

From past experience, well equipped and protected personnel have better morale and better discipline to equip them to correctly respond to personal threat without losing control. The British ‘ethos’ of low-profile, non-lethal and politically correct response is one to be proud of.

The correct selection of PPE is fundamental to that aim, and the proven approach to standards development, established over many years by the British Standards Institution, and reflected in the proceedings of subcommittee PH/3/12, provides the mechanism by which this aim can be met.

REFERENCES

[1] Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work.
[2] Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace.
[3] Council Directive 89/686/EEC of 21 December 1989 on the approximation of the laws of the Member States relating to personal protective equipment.
[4] The Police (Health and Safety) Act 1997
[5] The Police (Health and Safety) Regulations 1999; SI 1999/860
[6] The Health and Safety at Work, etc. Act 1974
[7] "Health and Safety in the MoD – A Policy Statement by the Secretary of State for Defence"; Ministry of Defence, 31 July, 1997
[8] "The Management of Safety and Environmental Protection in the Ministry of Defence – A Policy Statement by the Secretary of State for Defence"; Ministry of Defence, 7 July, 2000
[9] The Management of Health and Safety at Work Regulations 1992; SI 1992/2051
[10] The Management of Health and Safety at Work Regulations 1999; SI 1999/3242
[11] The Management of Health and Safety at Work Regulations – Approved Code of Practice and Guidance; Health and Safety Executive, April 2000
[12] The Personal Protective Equipment at Work Regulations; SI 1992/2966.
[13] The Personal Protective Equipment (EC Directive) Regulations; SI 1992/3139 as amended by the Personal Protective Equipment (EC Directive) (Amendment) Regulations SI 1993/3074 implementing Council Directive 93/95/EEC and the Personal Protective Equipment (EC Directive) (Amendment) Regulations 1994 SI 1994/2326 implementing Council Directive 93/68/EEC as it relates to PPE.
[14] BS 0-1:1997 - A standard for standards - Part 1: Guide to the context, aims and general principles.
[15] The Control of Misleading Advertisements (Amendment) Regulations 2000 (SI 2000 No 914).

ACKNOWLEDGEMENT

The author wishes to acknowledge the assistance and additional information kindly provided by Dr. Roderick Ian Woods, of the Protective Clothing Research Facility, Cambridge University, in the preparation of this paper.

NOTICE
Whilst every effort has been made to ensure accuracy within the content of this document, the statements and opinions expressed in this document are to be considered those of the author only, and do not necessarily reflect the views of the British Standards Institution or those of all individual interest groups represented within the membership of BSI subcommittee PH/3/12.

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