Best foot forward
Keith Patten looks at the difficulties created by recent legal rulings on protective footwear.
Many types of protective equipment are provided to workers to allow them to carry out their jobs safely. One obvious and common item of protective equipment is protective footwear.
What workers need to be given and when is dealt with by the Personal Protective Equipment at Work Regulations 1992. These define personal protective equipment (PPE) in very broad terms. But protective footwear is included.
The regulations impose obligations only on employers in relation to their employees. For an agency worker or contractor, therefore, the obligations to comply with these regulations lie on their actual employers, not on the operators of the enterprise in which they are working.
Crucially, the provision of PPE should always be a protection of last resort. The primary obligation on an employer is to try to control the risk in some other way. Only where that proves unsuccessful should they issue PPE against the risk.
So, if the risk is of something heavy falling on the worker’s feet, the employer should not provide protective footwear until they have first considered whether or not they are able to remove the risk in the first place.
The core obligation, under Regulation 4, is to provide PPE that is suitable for the risks to which the worker is exposed. This means that, before the obligation kicks in, there does have to be some level of foreseeable risk, judged objectively and on the basis of the things the employer knew or should have known at the time of the accident, not with the benefit of hindsight.
In making these decisions, Regulation 6 obliges the employer to carry out a risk assessment to decide what equipment will be suitable. Therefore, although hindsight is not relevant, the employer is obliged to think proactively about possible risks.
When PPE is provided, there is also an obligation under Regulation 9 to give adequate information, instruction and training in the use of the equipment and, under Regulation 10, to ensure, so far as reasonable, that the equipment is used.
Therefore, the employer’s obligations do not end with the provision of the PPE. They must seek to ensure it is used properly.
Maintain in good repair
Regulation 7 also obliges the employer to ensure that any PPE that is provided is maintained in good repair, though this has turned out to be a controversial provision.
A couple of key legal cases illustrate how the Regulations apply in relation to protective footwear. In the case of Dye -v- William Lee Limited, decided by Sheffield County Court in 2007, the worker suffered a burn injury when molten material fell onto his foot. He was provided with protective boots but the ones he was wearing were old and had a hole in them.
The employers sought to escape liability by blaming Mr Dye. They said he should not have been wearing old boots with a hole in them and that there were instructions issued not to wear old, worn boots.
The Judge rejected their argument and found for the claimant. It was not enough for the employer merely to issue the equipment and an instruction and then hope for the best. It was its duty to devise and implement a proper system to ensure that the equipment was being used properly.
Such a system might include inspecting the PPE’s condition and implementing measures for enforcing its proper use. So the employers’ duty is a continuing one, which does not end when PPE has been provided.
In Spence -v- South Tyneside MBC, a Thompsons case for UNISON, Mr Spence, a refuse collector, was issued with boots that were uncomfortable for him and, by the end of his first shift wearing them, his left foot was badly swollen and inflamed.
The Judge accepted our argument that the requirement under Regulation 4 to provide PPE which was suitable, included ensuring that it fit the wearer properly. The boots clearly did not, and therefore were not suitable.
Notably however, the judge found the claimant to be 50 per cent to blame for his injury, and reduced his damages accordingly, because, the Judge said, he had failed to make enough of a fuss about his discomfort at the time.
As said above, the obligation in Regulation 7 to maintain PPE in good repair has proved controversial. This is as a result of the majority decision of the House of Lords in Fytche -v- Wincanton Logistics (2004).
Mr Fytche drove a milk tanker for the defendants. In sub-zero temperatures he got stuck in snow on a country road and set about clearing it to get himself moving again.
He was provided with a pair of steel toe-capped boots. Unfortunately, one of these had a tiny hole and freezing water leaked in resulting in mild frostbite in his little toe.
The reason the boots were supplied was to protect his feet from something heavy, like a milk churn, falling on them. They were not designed or intended for use in the wet or in extreme weather conditions. Mr Fytche had not noticed the tiny hole before the incident.
Mr Fytche argued that the obligation under Regulation 7 was to keep PPE in good repair. The boots were PPE and were not in good repair because they had a hole in them. Therefore, he said, Regulation 7 had been breached.
The House of Lords did not agree. It ruled that the duty to maintain applied only in respect of those aspects of the equipment that made it PPE – the risk that they were issued to prevent.
The boots were provided to protect against crushing injuries. The hole did not make them unsuitable for that purpose and so there was no breach of the regulations. While it was true that the hole was a defect, they were not designed to be waterproof and so that defect did not make them unsuitable as PPE in this context.
But, as one of the dissenting judges pointed out, that is not what the Regulations say. Once a piece of PPE has been provided, the obligation is to keep it in good repair from a health and safety point of view.
That must apply to the piece of PPE as a whole, in this case the whole boot. The part of the boot designed to protect against crushing injuries is the steel-toe cap, but it is meaningless to talk about the steel toe-cap in isolation from the rest of the boot.
Fytche has watered down the protection provided by these Regulations. The problem is that it is a decision of the House of Lords and therefore binding on lower courts.
One possible way around this, still to be explored fully in the courts, is to argue that work boots are not just PPE, but are also work equipment covered also by the Provision and Use of Work Equipment Regulations, which impose separate and, it appears, stricter, maintenance obligations in respect of defective work equipment.
Whether the courts will allow Fytche to be circumvented by this route remains to be seen. As it stands, the House of Lords has placed a significant restriction on worker protection by its interpretation of these regulations.