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Joint Committee on Statutory Instruments First Report


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:

    Regulation 6(4) requires an employer to ensure that no work equipment —

    (a)  leaves his undertaking; or

    (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.

    Please explain —

    (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 inspected.

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 the information.

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

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Prepared 17 December 1998