An employer has an obligation to provide suitable protective equipment for employees and, following a recent House of Lords ruling, need only consider the risk for which the equipment was provided to protect against and whether the equipment was sufficient for that purpose. Richard Booth, a legal advisor at international law firm Eversheds, discusses the ruling and employers’ obligations
HEALTH and safety laws are becoming increasingly tough and it is a legal obligation for employers to provide employees with suitable protective equipment to carry out his duties. These laws have wide implications across the acr industry, in manufacturing, contracting and, increasingly, in distribution. But how far do employers’ responsibilities extend? The recent case of Fytche v Wincanton Logistics, which eventually went as far as the House of Lords, sought to answer this question but, ultimately, left the door open for more stringent laws in the future.

The Claimant, Mr Fytche was employed as a lorry driver for Wincanton Logistics, collecting milk from farms in a bulk tanker and delivering it to processing plants. His employer provided him with steel toe capped safety boots in order to protect his feet when working around the heavy loads he was transporting. Wincanton recognised the risk, of an industrial accident, that heavy milk containers could fall upon Mr Fytche and he needed protection from this risk.

One evening Mr Fytche’s lorry got stuck in the snow. The company’s standard procedure in circumstances such as this was to phone the office for assistance. However, Mr Fytche spent three hours digging the vehicle out of the snow, and engaged the help of a farmhand so that he would be able to continue with his appointments with minimal delay. During that period of digging, water leaked through a hole in his boot and he developed frost bite and susequently had to have part of his little toe removed.

The claim

Mr Fytche initially issued a claim against Wincanton claiming negligence on the part of his employer in not supplying him with boots which would offer him protection against the freezing cold and snow.

Wincanton defended this claim by stating that, as part of the normal day-to-day duties he was expected to undertake, he was not required to spend time in the snow and ice. For the work he was employed to do, the boots he was supplied with 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, most specifically he complained that the hole which was either inherent to, or had developed in, his boot meant that Wincanton had acted in contravention of the Regulations. Mr Fytche claimed Wincanton had breached the Regulations by not keeping the equipment, namely the boots, in good repair. He argued that firstly the boots should be considered as personal protective equipment under the Regulations and that the obligation for them to be suitable and kept in good repair to protect him against the risks inherent in his work was absolute. He believed 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 falling onto his feet, which the metal toe capped boots were designed for.

The law

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 initial decision

Mr Fytche had his initial claim, brought in the County Court, dismissed. At this stage the judge considered reg 7(1) as a requirement upon the employer to provide protective equipment and maintain them so as to:

“Preserve the efficiency of the boots against the risk in relation to which they had been supplied. He concluded that the hole did not in any way undermine the protection that the boots were designed to give and that the boots were in efficient working order and good repair.”

Mr Fytch lodged an appeal against this decision on the basis that an employer should be held liable under the Regulations for any deficiencies in the protective equipment, which result in injury or loss, rather than deficiencies which relate to the specific purpose for which they were provided.

The matter was appealed all the way to the House of Lords who were divided 3:2 in favour of the employer’s argument that personal protective equipment doesn’t have to be fit for purpose against all risks, even those risks that are not anticipated.

The correct reading of the Regulations meant that an employer should only be responsible for those risks related to the specific purpose for which they were provided.

Lord Hoffman offered the leading judgment in favour of Wincanton: “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 PPE (Personal Protective Equipment) and there is nothing to suggest that they failed any of the tests of suitability. They fitted, were appropriate for conditions in milk parlours and so on. Nor did the hole in one of the boots create a secondary risk or increase overall risk. The second risk or overall risk must be a risk in the course of employment. As Mr Fytche was not expected to do anything which required him to have waterproof boots, the hole created no such risk.”

But what would have been the impact upon employers had Mr Fytche been successful in his claim? Lord Hoffman provided a helpful example of a noisy factory, where employees must wear ear muffs, to illustrate his point. In this example, the ear muffs might also be fitted with radio receivers so that employees could listen to music whilst they worked. After a while these radio receivers could stop working and the employer might refrain from fixing them. Following Mr Fytche's argument, the equipment is therefore technically “defective” not withstanding the fact that the primary purpose for which they were provided was to protect an employee's hearing.

While Lord Hoffman suggested this to be a flawed argument, had the House disagreed, an employer’s liability under the Regulations would have been effectively without limit.

Future implications

Two of the three Lords hearing the case in the House of Lords favoured Mr Fytche’s argument and clearly highlighted that there is a body of legal opinion that an employer, when providing protective equipment, should have a total obligation to protect his employees against any risks they may incur when using that equipment. This division of legal interpretation reflects a wider body of opinion which believes, on policy grounds, that employers should be liable for the equipment they supply regardless of the circumstances. It is conceivable that the government may reconstruct the legislation in the future to reflect this approach. When the Regulations are next open to review and amendment, it is possible that employee groups will lobby for express wording to widen them. Employers should be aware that their obligations may, in the future, change and their own liability may therefore need to be reassessed in light of this.

The judgment handed down by the House clearly divided the House of Lords and this is reflected by the slim majority of 3:2 by which the decision was made. The final decision now offers comfort to employers by limiting their liability under the Regulations to the risks anticipated when the protective equipment was supplied.

In many fields a responsible employer will need to be aware of the duty to provide protective equipment and clothing for their employees and the liabilities connected with a failure to do so under the Regulations. It is important therefore that employers make detailed assessments, on a regular basis, of the risks their employees face in carrying out their work and what type of protective equipment and clothing they should be provided with.

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 to go further, however, and prove that the protective employment supplied was suitable for every purpose, whether or not it is related to the risks of the job.