Memorandum by the
Department of the Environment, Transport
and the Regions
1. By a letter from its clerk
dated 11 November 1998 the Committee has requested a memorandum
on the following point:
requires an employer to ensure that no work equipment
(a) leaves his
(b) if obtained
from the undertaking of another person, is used in his undertaking,
unless it is accompanied by physical evidence
that the inspection required to be carried out under this
regulation has been carried out.
(a) what is
meant by "physical evidence"; and
(b) in a case
where employer Y has obtained the equipment from employer X, how
can Y know when regulation 6 last required X to have the equipment
2. "Physical evidence"
has the meaning it has in Article 4a(3) of Council Directive 89/655/EEC
(OJ No.L393,30.12.89, p13) on the minimum health and safety requirements
for the use of work equipment at work as amended by Council Directive
95/63/EC (OJ No.L335,30.12.95,p28). The Directive does not provide
help as to its meaning.
3. Because of the need to
be seen to give full effect to the Directive, the expression has
been enacted in the Regulations without modification. The expression
may have been meant to restrict the evidence to the kind that
can be "kept at the disposal of the authorities concerned"
(see the first paragraph of Article 4a(3)) and thus exclude, for
example, oral representations. It is submitted that it is to be
interpreted as including documents, whether or not associated
with, for example, markings on the work equipment itself.
4. As regards part (b) of
the point, Y will know when regulation 6 last required X to have
the equipment inspected unless X fails to discharge his own duty
in regulation 6(4) to ensure that the equipment does not leave
his undertaking without "physical evidence" which includes
5. On the basis that "physical
evidence" includes documentary evidence, a certificate by
the employer supplying it that the last inspection required to
be carried out under the regulation had been carried out would
be one means of compliance with regulation 6(4).
16th November 1998