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30 September 2015 / by / in

First Ruling on Enforcement Notices

The decision by the Court of Appeal in a case concerning a prohibition notice has opened up opportunities for additional evidence to be considered in these cases, following the long awaited decision by the Court of Appeal in Hague v Yorkshire Rotary Ltd [2015] EWCA 696, handed down in June.

The case concerned a prohibition notice served by an HSE inspector. By section 24 of the Health and Safety at Work etc. Act 1974 (HSWA), the service of an improvement or prohibition notice can be challenged in the Employment Tribunal.

At one time it was thought that the only issue in respect of a prohibition notice was whether an inspector reasonably believed there was a risk of serious personal injury on the

evidence available at the time. However, in Railtrack v Smallwood [2001] ICR 714, which concerned a prohibition noticed served in relation to the railway signal at the centre of the Ladbroke Grove train disaster of 1999, the High Court expressed the provisional view that:

“[A] tribunal… was not limited to reviewing the genuineness and/or reasonableness of the inspector’s opinions. It was required to form its own view, paying due regard to the inspector’s expertise…”

In the later case of Chilcott v Thermal Transfer Ltd [2010] EWHC 2086 (Admin) the High Court followed this approach and confirmed that the Employment Tribunal’s function:

Is to identify on the evidence before it, which is not restricted to matters that were in existence before a particular date, what the situation was at that particular date” and that it should not “close its eyes to matters that occurred after that time”.

This landmark decision meant that organisations had a much greater chance of succeeding in a challenge.

Rotary Yorkshire also concerned a prohibition notice. It was served following an unannounced inspection of a high voltage room in the Leeds Arena. The inspector observed exposed conductors at the rear of a switchboard. The notice was issued because the company was unable to prove on the day that the conductors were dead. The next day, an authorised person tested the equipment and confirmed it was in fact dead and could not be energised.

In the case before the High Court the judge found that the inspector should have allowed the company an opportunity to prove the conductors were dead and in the meantime could have issued a direction to leave undisturbed under section 20(20)(e) of the HSWA.

However, the judge’s ruling was overturned by the Court of Appeal saying he could only consider issues of law and not fact. Thus the Employment Tribunal’s decision affirming the notice with a modification was reinstated.

The judge also took into account the commercial impact of the prohibition notice in his decision. The Court of Appeal observed: “Plainly such a consideration is irrelevant to the merits or demerits of a prohibition notice’s issue”.

Although HSE succeeded in the Court of Appeal, the judgement is in some ways a hollow victory because the Court of Appeal went on to approve Chilcott, saying the tribunal is “required to consider and decide whether on the facts which were or should have been known to the inspector a prohibition notice was justified” (emphasis added). The ruling is applicable to challenges to improvement notices as well as prohibition notices.

Inspectors can often issue notices when they have had very little time to consider the issues or collect evidence. Further, they may be reviewing an operation of which they have little or no relevant experience or knowledge. What the Court of Appeal has confirmed is that the appeal process under section 24 HSWA can provide a new assessment and an opportunity for additional evidence and information to be considered.

This report originally appeared in the September edition of SHP Magazine.

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