Appealing against prohibition and improvement notices under HSWA – an opportunity for employers?
HM Inspector of Health and Safety v Chevron North Sea Limited
On Thursday 8 February 2018, the Supreme Court handed down a judgment which determines the correct approach for dealing with an appeal under section 24 of the Health and Safety at Work etc Act 1974 in light of contradictory decisions made by the Court of Appeal and the Court of Session in England/Wales and Scotland respectively.
Chevron operates an offshore installation in the North Sea. In April 2013, the installation was inspected by a HSE Inspector. A vital part of the installation was its helipad, which acted as the primary source of access to the installation. Upon inspection, the inspectors formed the view that the stairways were unsafe due to corrosion. Specifically, it was deemed that there was a risk of serious personal injury from falling through these stairways and the inspectors therefore served a prohibition notice on Chevron under section 22 of the Health and Safety at Work etc Act 1974 (the Act). Chevron appealed to the Employment Tribunal against the prohibition notice under section 24 of the Act. At the appeal Chevron relied upon a report from an expert commissioned some eleven months after the inspection which indicated that there was no risk as the stairways conformed to the relevant British Standard and on that basis the Employment Tribunal allowed the appeal.
The HSE appealed to the Court of Session relying on the Court of Appeal Judgment in Hague v Rotary Yorkshire Limited  EWCA Civ 969 in which the Court had ruled that only facts available to the Inspector at the time the Notice was served should be considered. The Court of Session rejected HSE's appeal. In view of the conflicting decisions between the Court of Session and Court of
Appeal the Supreme Court granted HSE permission to appeal to it.
The key question – what evidence should be considered on an appeal?
The key question considered by the Supreme Court was whether, on appeal, the tribunal should be limited to consider the matter based solely on the material which was or should have been available to the inspector at the time of the inspection, or whether it is entitled to take into account all available and relevant evidence.
In reaching its decision to dismiss the appeal from the HSE, the Supreme Court took into account a number of practical factors. These included the fact that it is vital for inspectors to be able to take “prompt and effective action to ensure compliance with the Act". The Supreme Court also considered the fact that service of a prohibition notice on a business has the “potential to do considerable harm to it” including “significant damage to the business’s reputation and its ability to tender for contracts”. Perhaps most importantly, the Supreme Court made it clear that an appeal is against the prohibition notice itself and is not against the opinion of the inspector who served the notice. It was noted that the heading of section 24 of the Act indicates this.
A further point the Supreme Court considered was that, unless suspended by the tribunal, a prohibition notice remains in force during the appeal process. The disruption and potential harm to the business this causes provides “plenty of encouragement” for employers to make sure they avoid getting into such a position in the first place.
Implications and potential practical consequences of the judgment
The Judgment does indicate that there will be greater scope for challenging Prohibition and Improvement Notices than has been the case since the decision of the Court of Appeal in Hague v Rotary Yorkshire. Accordingly employers should consider very carefully whether evidence is available or could be obtained which was not known to the Inspector at the time the Notice was served which could form the basis of a challenge to the Notice. Given their potential commercial and reputational consequences all Notices should be carefully considered with a view to establishing whether there are reasonable grounds for appeal.
In terms of practice the following might emerge:
- Appeals will become a battle between experts
- HSE Inspectors may serve wide ranging document requests under Section 20 HSWA so as to increase the scope of evidence available to them when considering whether to issue a Notice.
- In consequence of the preceding point there may be an increase in Fees For Intervention (FFI) as even if a Notice is not served HSE might contend that there has been a material breach hence triggering liability for FFI.