PPE and the employer

What legal obligations are there upon an employer to provide protective equipment to its employees? How far do these responsibilities extend? Fytche v Wincanton Logistics (2004) looked to answer such questions.

The claimant, Mr Fytche, was employed as a heavy goods vehicle driver for Wincanton Logistics. The employer provided steel toecapped safety boots in order to protect his feet when working around the heavy loads he was transporting.

In December 1999 Fytche's vehicle got stuck in the snow. The company's standard procedure in such circumstances was to phone for assistance. Despite this, Fytche spent three hours digging the vehicle out of the snow. While digging, water leaked through a hole in his boot and he developed frostbite. As a result he had to have part of his little toe removed, he spent several months off work and was left with a permanent sensitivity to cold in his foot.

The claim

Fytche initially issued a claim for negligence against Wincanton for not supplying him with boots that would offer protection against freezing cold and snow. Wincanton defended this claim stating that, as part of his day-to-day duties he was not required to spend time in snow. For the work he was employed to do, the boots supplied were considered adequate. Fytche failed in his negligence claim for these reasons.

Fytche then lodged a claim under the Personal Protective Equipment at Work Regulations 1992. Most specifically he complained that the hole meant that Wincanton had acted in contravention of the Regulations by not keeping the equipment in good repair. He argued that the boots supplied by his employer should have offered protection against risks, including extreme weather conditions, in addition to the specific risk of heavy objects.

The decision

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 (ppe) doesn't have to be fit for purpose against all risks. The correct reading of the Regulations is that an employer should only be responsible for those risks related to the specific purpose for which ppe was provided.

An employer should only be responsible for the risks related to the purpose for which ppe was 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 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. The second or overall risk must be a risk in the course of employment. As Mr Fytche was not expected to do anything that required him to have waterproof boots, the hole created no such risk."

Implications for industry

Two of the three Lords hearing the case favoured Fytche's argument. This highlighted a body of legal opinion that an employer providing ppe has a total obligation to protect their employees against any risks they may incur when using that equipment. This division of legal interpretation reflects a wider body of opinion 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. Employers should be aware that their obligations may change and their own liability may need to be reassessed in light of this.

The judgment handed down clearly divided the House of Lords. The final decision offers comfort to employers by limiting their liability under the Regulations to the risks anticipated when the ppe was supplied.

In many fields a responsible employer must be aware of the duty to provide ppe and clothing for their employees and the liabilities under the Regulations when failing to do so. It is important that employers make regular detailed assessments of the risks their employees face in carrying out their work and what type of ppe and clothing they should be provided with. This case offers some clarity as to the limits of that duty and indicates that the risk for employers is not open-ended.

An employer must consider the risk for which ppe is provided to protect against and whether it is sufficient for that purpose. It is not required to go further and prove that the ppe supplied is suitable for every purpose, whether or not it is related to the risks of the job.