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Do I have to provide my own protective gears?

BY: Mirror Lawyer

Dear Mirror Lawyer, I was recently hired by a sanitation company in the middle zone.

I am a labourer assigned to one of the numerous refuse collection trucks which collects refuse from homes in the locality.When I was hired my supervisor told me that the company would provide me with all the protective clothes, boots, gloves and other things that I need to ensure my safety while on the truck. It has been three months now and I have not received all that I need to effectively work. I wear slippers to work and I am constantly exposed to injury. I have no gloves, face mask or other protective gear needed to prevent injury or illness.

My supervisor now says it is not the responsibility of the company to provide me with the protective gear, and that I should buy it myself. Is my supervisor right? I need your help.
Kojo Danso, Ashanti Region

Dear Kojo, the common law has always held the employer to be under an obligation to take reasonable care for the employee’s safety. The obligation of the employer to ensure the safety of the employee is three-fold as stated in the case of Wilson’s and Clyde Coal Co Ltd v English [1938] A.C 57.

The obligations are -
1) The employer is to employ competent staff members;
2) The employer is to supply the employee with adequate materials; and
3) The employer is to provide for a proper system and effective supervision.

Your challenge is in relation to the duty of your employer to ensure that he provides you with adequate materials needed to discharge your duties. The nature of your job falls under the type of work in which every protective gear is required to be provided to ensure your safety while on the truck.

Apart from providing you with the protective gear, your supervisor must ensure you wear the gear. For your part, you are required by law to comply and wear the protective gear.

In the English case of Clifford v Charles H. Challen & Sons Ltd [1951] 1 KB 495 the work of the plaintiff required that a special cream should be applied to the skin before using a type of glue in the course of the employment.

The cream was available in the employer’s factory and made accessible to all workers. There was also a notice placed on the employer’s notice board warning all employees to apply the cream. The supervisor of the employer took no steps to ensure the cream was being used. The employee contracted a type of skin disease and claimed it was due to the negligence of his employer.

The court held in favour of the worker that the employer was under a duty to make the cream available in the shop rather than in its factory. The court also stated that the employer failed to supervise the cream was used in accordance with the notice.

On the other hand where the employer provides all the appropriate materials at the designated place to wear them before starting work and a worker fails to wear the protective equipment, the employer will not be liable in event of any injury.

This is what happened in the English case of Woods v Durable Suites Ltd [1953] 1 WLR 857, where an experienced worker failed to apply a cream to his body before working though he was advised several times to use the cream but ignored the directives and suffered a skin disease. In a suit claiming a breach on the part of his employers, the court held that the employer was not liable as it had discharged its duty by providing adequate and appropriate safety equipment and also instructed their employees to abide by procedures put in place.

Section 9 of the Labour Act, 2003 ( Act 651) specifies some of the duties of an employer towards an employee. These are duty to provide work and appropriate raw materials, machinery, equipment and tools; duty to take practical steps to ensure that the worker is free from risk of personal injury or damage to health during and in the course of the worker’s employment or while lawfully on the employer’s premises and duty to protect the interest of the workers.

The Factories, Offices and Shops Act specifies the type of protective clothing for specified shops. Section 25 makes it clear that where workers are employed in a process involving excessive exposure to injurious or offensive substances, suitable protective clothing and appliances such as gloves, footwear, goggles and head coverings shall be provided by the employer for the use of the worker.

In your case, your supervisor breached the law by failing to provide those protective equipment and asking you to provide them yourself.

I will advise you to immediately report this matter to the human resource department or a manager who is above the rank of your supervisor. Where you are not making any progress in resolving the matter, you may petition the National Labour Commission for redress.