The Respondent, Chevron North Sea, operates an offshore installation in the North Sea. Following an inspection in April 2013 by the Appellant, Her Majesty’s Inspectors of Health and Safety, a Prohibition Notice was served on the Respondent on the basis that corrosion to the stairways and staging of the helideck rendered them unsafe. The Respondent subsequently lodged an appeal against the Prohibition Notice to the Employment Tribunal.
In July 2013, the Respondent arranged for the metalwork in question to be tested by an expert. The results were that the metalwork passed the British Standards strength test and, as such, there was no risk of personnel being injured by falling through the stairways or staging. The Respondent therefore sought to rely upon this expert report as part of their appeal to the Employment Tribunal.
The issue before the Supreme Court was whether an Employment Tribunal is confined to the material which was, or could reasonably have been, known to the inspector at the time the notice was served or whether it can take into account additional evidence which has since become available. The Supreme Court dismissed the appeal and held that the Employment Tribunal can take into account all the available evidence relevant to the state of affairs at the time of the service of a Prohibition Notice, including information coming to light after it was served.
In reaching its decision, the Supreme Court effectively resolved the conflicting decisions of the English Court of Appeal case in Hague (One of Her Majesty’s Inspector of Health and Safety) v Rotary Yorkshire Ltd  EWCA Civ 696 and the Scottish Inner House Court of Session in Chevron  CSIH 29. In Hague v Rotary Yorkshire, the Court of Appeal had ruled that an Employment Tribunal should only consider evidence available to the inspector at the time a Prohibition Notice is served.
However, the Supreme Court here was unanimous in its decision that a tribunal can consider evidence that comes to light after a notice has been served.
The Supreme Court considered a number of issues in coming to its decision:
- The service of a Prohibition Notice on a business has the potential to do financial and reputational harm to it.
- The Employment Tribunal must be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was.
- The effectiveness of a notice is in no way reduced by an appeal process which enables the realities of the situation to be examined by a tribunal with the benefit of additional information.
- This wider interpretation of s.24 does not undermine the role of prohibition and improvement notices in encouraging employers to have robust systems in place to demonstrate easily that no risk exists and therefore avoid the disruption of a prohibition notice which remains in force during the appeal process unless suspended by the tribunal.
- The answer to the issue of what information the Employment Tribunal is entitled to take into account when forming its view of the facts at the material time is not clear from the wording of s.24 Health and Safety at Work etc. act 1974 and must be considered in the light of the statutory scheme as a whole.
- An appeal against an inspector’s notice is not against the inspector’s opinion but against the notice itself.
- It is no criticism of the inspector when new material leads to a different conclusion about risk from the one he reached. His decision is often taken as a matter of urgency and without the luxury of comprehensive information.
This judgement is significant for recipients of Prohibition Notices and Improvement Notices who know all too well the significant and negative financial and reputational impact enforcement notices can have on an organisation.
Should a recipient consider there are grounds for appealing a notice and evidence / information can be obtained post-notice to support this, then the Tribunal will be entitled to take this into account when considering whether there was in fact a risk of serious personal injury when the notice was served.
This seemingly common sense approach will be welcomed by many organisations where, if it can be shown there was no risk at the material time, then the notice will be modified or cancelled as appropriate.