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New material admissible on health and safety notice appeal: Supreme Court

9 February 2018

An oil installation operator has won a court battle with health and safety inspectors over the safety of one of its installations in the North Sea.

Five Justices in the UK Supreme Court unanimously refused an appeal by the inspectors against a ruling that information that came to light after a prohibition notice was issued could be taken into account in deciding whether to uphold the notice.

The case arose from an inspection of a platform operated by Chevron North Sea Ltd. The inspectors formed the view that corrosion had rendered the stairways and stagings to the helideck unsafe and served a prohibition notice on Chevron under s 22 of the Health and Safety at Work Act 1974. Chevron appealed against the notice under s 24 of the Act, and meantime arranged for the relevant metalwork to be removed and tested. The results showed that all the metalwork passed the British Standard strength test with the exception of a panel which had been damaged during the inspection and could not be tested reliably. There was no risk of personnel being injured by falling through it. An employment tribunal, and on further appeal the First Division, held that this new information should be taken into account, and quashed the prohibition notice. The inspector appealed, arguing that the tribunal was confined to the material which was, or could reasonably have been, known to the inspector at the time the notice was served.

Lady Black, with whom Lord Mance (Deputy President), Lord Sumption, Lord Reed and Lord Hodge agreed, said that on an appeal under s 24 the tribunal was entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served. It was vital for inspectors to be able to take prompt and effective action to ensure compliance with the Act, and a prohibition notice was a powerful tool in the inspector’s hands; however, the service of such a notice had the potential to do financial and reputational harm to a business.

The wording of s 24 was unclear on the point at issue, which had to be considered in the light of the statutory scheme as a whole. An appeal against an inspector’s notice was not against the inspector’s opinion but against the notice itself. The tribunal in the present case had to decide whether the stairways to the helideck were so weakened by corrosion as to give rise to a risk of serious personal injury. There was no good reason for confining the tribunal’s consideration to the material that was, or should have been, available to the inspector. It had to be entitled to have regard to other evidence which assisted in ascertaining what the risk in fact was. If the evidence showed that there was no risk at the material time, then the notice would be modified or cancelled as the situation required.

She added that it was no criticism of the inspector when new material led to a different conclusion about risk. His decision was often taken as a matter of urgency and without the luxury of comprehensive information. This wider interpretation of s 24 did not undermine the role of prohibition and improvement notices in encouraging employers to have robust systems in place to demonstrate easily that no risk existed, and therefore avoid the disruption of a prohibition notice which remained in force during the appeal process unless suspended by the tribunal.

While the HSE argued that permitting the tribunal to look beyond the material available to the inspector would create delay and cost, the appeal had to be started within 21 days and was thereafter under the control of the tribunal. If the appellant’s interpretation were correct, a notice could not be dislodged even if the perceived risk of injury never in fact existed. In some cases, an employer might have to carry out unnecessary works. Further, it could not be right in those circumstances that an employer should be exposed to the possibility of criminal proceedings after their appeal was concluded.

Click here to access the judgment.

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