In February 2018 the UK Supreme Court handed down a unanimous decision providing clarity on use of evidence when appealing a Prohibition Notice issued by the Health & Safety Executive (HSE).
Tribunals are entitled to take into account materials that become available after a Prohibition Notice is served by an HSE Inspector when determining an appeal and deciding whether to modify, cancel or affirm a notice.
In 2013 Chevron was served with a Prohibition Notice following an inspection of an offshore installation in the North Sea, the HSE inspector was of the opinion that corrosion to stairways and staging amounted to a risk of serious personal injury to individuals on site.
Chevron appealed to the Employment Tribunal in Aberdeen and sought to rely on an expert report prepared after the Prohibition Notice to demonstrate that no risk of serious personal injury existed. The Prohibition Notice was ultimately cancelled on grounds that the tests carried out by Chevron satisfactorily demonstrated lack of risk.
The HSE disagreed with the decision, particularly reliance on evidence which was unavailable at the time the Prohibition Notice was issued and sought to appeal to the Scottish Inner House. The appeal was unsuccessful with the House approving the previous decision, that a company is entitled to rely on all relevant evidence at the time of the appeal.
The case was referred to the Supreme Court as the decision created a conflict between the Scottish and English legal position, the English case of Rotary Yorkshire v Hague  held that only evidence available or which could reasonably have been available to the HSE Inspector could be taken into account when deciding an appeal.
The Supreme Court decision
The Supreme Court concluded that an appeal against a Prohibition Notice is not an appeal against the opinion of an HSE inspector, but against the notice itself. An opinion as to existence of risk of serious personal injury grants an HSE Inspector the right to serve a Prohibition Notice in accordance with s.22 of the Health & Safety at Work etc. Act 1974 and would be “relevant as part of the evidence shedding light on whether the risk existed” on appeal, but could not be the only evidence a Tribunal is permitted to rely on when considering an appeal.
Lady Black handing down the judgement stated if subsequent evidence “shows that there was no risk at the material time, then, notwithstanding that the inspector was fully justified serving the notice, it will be modified or cancelled as the situation requires”. The effectiveness of a Prohibition Notice is not reduced by an appeal process which enables a Tribunal to examine the circumstances with the benefit of additional information obtained at a later date, such as an expert report or information gathered in an internal investigation.
The Supreme Court also indicated the same approach is appropriate when a Tribunal is considering an appeal against an Improvement Notice issued by an HSE Inspector.
Future impact on businesses
Prohibition Notices and Improvement Notices have the potential to cause considerable impact due to disruption of business, financial cost and damage to reputation, and it has been difficult to challenge them on the reasonableness of the issuing HSE inspector’s belief of risk of harm alone.
The judgement in Chevron is certainly favourable in that businesses can now rely on evidence obtained after a Notice is issued which should mean Tribunals are able to make a more complete assessment of facts during appeals. This should lead to more successful appeals.
If a Notice is received, it is important to remember that any appeal must be lodged within 21 days of service. The judgement in Chevron suggests that the merits of an appeal should be considered in every circumstance.
This post was written by Oliver Woodhouse. For further information, please contact:
Oliver Woodhouse, solicitor, Regulatory
T: 0121 212 7735