Fytche v. Wincanton Logistics plc

Mr Fytche was employed by Wincanton as a lorry driver collecting milk from farms and delivering it to the processing depot. His employer provided him with safety boots with steel toe-caps, which were designed to protect his feet in the event that heavy items fell on them. The boots were not designed to be waterproof or to be used in extreme weather conditions.
One winter’s day, Mr Fytche’s tanker got stuck in snow. Whilst he was digging his tanker free, one of Mr Fytche’s boots leaked through a small hole next to his little toe. As a consequence, he suffered from mild frostbite and part of his little toe had to be amputated. Mr Fytche was absent from work for several months following the incident and he was left with permanent sensitivity to cold in the remainder of his little toe.

Mr Fytche brought a claim against his employer alleging that, because the boots had steel toe caps, they were ‘personal protective equipment’ and were covered by the Personal Protective Equipment at Work Regulations 1992 (“the Regulations”). He argued that the existence of a hole in the boot meant that his employer was in breach of its duty under the Regulations to keep such equipment in good repair.

Under the Regulations, employers are under a duty to ensure that suitable personal protective equipment is provided to employees who may be exposed to risk to their health and safety at work. Further, employers are under an obligation to ensure that any personal protective equipment provided to employees is maintained (including replaced or cleaned as appropriate) in “an efficient state, in efficient working order and in good repair”.

County Court decision

The County Court dismissed Mr Fytche’s claim on the basis that his employer was only required to maintain or repair his boots so as to preserve their efficiency against the risk in relation to which they had been supplied. The hole in Mr Fytche’s boot did not undermine the protection that the boots were designed to give by having steel toe caps. In this regard, the Court held that the boots were in efficient working order and good repair. That decision was upheld by the High Court and by the Court of Appeal. Mr Fytche appealed to the House of Lords.

House of Lords’ decision

Mr Fytche argued that as the boots were personal protective equipment under the Regulations, his employer was under a duty to maintain them in good repair, and a boot which has developed a hole, however small, is not in good repair. His employers argued that the safety boots were maintained in accordance with the requirements of the Regulations as they still protected Mr Fytche against the risks in respect of which they were supplied, i.e. the risk of heavy objects falling on Mr Fytche’s feet. Accordingly, there was no breach under the Regulations even if the boots in other respects were not in good repair.

Notwithstanding some disagreement between the Law Lords as to what constituted a boot in good repair, by a majority, the House of Lords dismissed Mr Fytche’s appeal. They held that the existence of a small hole in one of Mr Fytche’s boots did not amount to a breach of his employer’s duty under the Regulations to maintain the boots in efficient working order and in good repair. The House of Lords held that equipment must be efficient for the purpose of protecting against the relevant risks only. An employer has a duty to maintain the equipment so that it continues to be suitable personal protective equipment, however, it does not have a duty to carry out repairs and maintenance which are completely unrelated to its function of personal protective equipment. Further, in terms of an employer’s repairing obligations, an employer is not required under the Regulations to provide equipment which it need not have provided in the first place.

Mr Fytche had been provided with boots with steel toe caps because his employer considered that there was a sufficient risk of heavy objects falling on his feet and, notwithstanding the hole, they remained adequate for that purpose. Accordingly, the damage sustained by Mr Fytche when freezing water seeped through the hole in his boot was not the consequence of any breach of the Regulations by his employer.

This case is good news for employers as it confirms the extent of their repair and maintenance obligations in relation to employees’ protective equipment which is provided for health and safety purposes. Employers should ensure, therefore, that they are fully aware of the function of the equipment and that such equipment is kept in good working order and a good state of repair so that it provides the protection for which it is designed.

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