What legal obligations are there upon an employer to provide protective equipment to its employees? How far do these responsibilities extend? What are the limits of an employer’s liability? Fytche v Wincanton Logistics (2004) looked to answer these questions.
The Claimant, Mr Fytche was employed as a driver for Wincanton Logistics. His job involved driving a heavy goods vehicle. His employer provided steel toe-capped boots to protect his feet when working around heavy loads.
In December 1999, Mr Fytche’s vehicle got stuck in the snow. The company’s standard procedure was to phone for assistance. Despite this, Mr Fytche spent three hours digging the vehicle out of the snow. Water leaked through a hole in his boot and he developed frost bite.
As a result, Mr Fytche had to have part of his little toe removed. He spent several months off work and was left with a permanent sensitivity to the cold in his foot.
Mr Fytche initially issued a claim against Wincanton of negligence on the part of his employer in not supplying him with boots which would offer protection against the freezing cold and snow. Wincanton defended, stating that, as part of day-to-day duties, he was not required to spend time in the snow and ice. For the work he was employed to do, the boots were considered adequate. Mr Fytche failed in his negligence claim for these reasons.
Mr Fytche then lodged a claim under the Personal Protective Equipment at Work Regulations 1992, complaining that the hole meant that Wincanton had acted in contravention of the regulations by not keeping the equipment, the boots, in good repair. He argued that the boots supplied by his employer should have offered him protection against risks, including extreme weather conditions, in addition to the specific risk of heavy objects.
The regulations state:
Regulation 4(1) - “Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to risk to their health or safety at work.”
Regulation 7(1) - “Every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.”
The matter went all the way to the House of Lords. They decided 3:2 in favour of the employer’s argument that personal protective equipment does not have to be fit for purpose against all risks, even those risks that are not anticipated.
Lord Hoffman said: “Mr Fytche was provided with steel toecaps on his boots because his employers considered that there was a sufficient risk of heavy things falling on his feet. The boots were therefore personal protective equipment and there is nothing to suggest that they failed any of the tests of suitability...Nor did the hole in one of the boots create a secondary risk or increase overall risk.”
The final decision offers comfort to employers by limiting their liability under the regulations to the risks anticipated when the protective equipment was supplied.
An employer must consider the risk for which the equipment was provided to protect against and whether the equipment was sufficient for that purpose. It is not required, however, to further prove that the equipment supplied was suitable for every purpose, whether or not related to the risks involved.
Richard Booth is a Legal Advisor at international law firm Eversheds LLP.