An employer’s absolute obligation to maintain or repair protective equipment, under the Personal Protective Equipment at Work Regulations 1992, does not extend to a situation where an employee suffers an injury at work doing something that the equipment was not provided to protect against. This was the conclusion of the House of Lords in the case of Fytche v Wincanton Logistics.
Mr Fytche was employed by Wincanton Logistics plc to drive a 32-ton bulk tanker, collecting milk from farms. Every six months he was provided with a pair of steel-capped safety boots to protect him against injury from heavy, sharp or hard objects. During a spell of exceptionally cold weather, his lorry became stuck in the snow. The company’s standard instructions were that in such circumstances the driver should use the telephone in the cab to call for help and then wait to be rescued. Mr Fytche decided to try to free the vehicle and as a result of his efforts, he suffered frostbite. This was worse on one foot because, unbeknown to him, one of his safety boots had a tiny hole in it which allowed water to get in.
Mr Fytche’s employer was unaware of the hole in the boot. However, an employer can be found liable for defects they know nothing about and which are not immediately obvious.
Mr Fytche brought proceedings against his employer, originally alleging negligence because he should have been provided with boots that would protect his feet in freezing conditions. The company pointed out that Mr Fytche’s duties did not require him to walk for long periods in snow and ice and so he dropped this claim and instead claimed that his employer was in breach of its statutory duty to ensure that personal protective equipment was ‘maintained …in an efficient state, in efficient working order and in good repair’.
The County Court judge dismissed the claim on the grounds that the boots were not provided to protect against water, snow or frostbite. The Court of Appeal, on a majority decision, dismissed an appeal. Mr Fytche then took his case to the House of Lords and lost again, by a 3 to 2 majority. Lord Hoffman summed up the logic of the ruling, pointing out that Mr Fytche was not expected to do anything which required him to have waterproof boots. An employer has a duty to maintain personal protective equipment so that it provides suitable protection against the relevant risk but does not have a duty to do repairs and maintenance which have nothing to do with its function. One of the dissenting law lords, however, argued that the boot had to be suitable overall, ‘not just in relation to the identified risk’ and there is no reason why suitability should not include being in good general repair.
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