Malcolm Gunnyeon is a partner in Dentons’ dispute resolution team.
Companies large and small will be only too aware of the extensive powers available to HSE inspectors, and the potential impact their decisions can have on a business.
However, the success of a recent appeal against a notice shutting down operations on a North Sea oil rig has at least paved a way for those seeking to challenge enforcement action taken by an HSE inspector.
Prohibition and Improvement Notices issued under Sections 22 and 23 of the Health & Safety at Work etc. Act 1974 are an important tool in safeguarding employees, particularly those working in hazardous environments.
The practical, economic and reputational impact on an organisation receiving such a notice cannot be underestimated. Quite apart from the impact of an enforced shut-down of operations, Prohibition and Improvement Notices are recorded on the HSE’s database for five years – providing a stark and public record of an organisation’s health and safety failings.
But while that is eminently justifiable in the case of an organisation guilty of an infringement, it will be a much harder pill to swallow for a business that is doing what is expected of it to protect both its staff and the public. Until recently though, there was no obvious way to challenge the facts on which such a decision was based.
The forum for resolving disputed notices is an appeal to the Employment Tribunal, but with little case law available, it has been unclear what the tribunal could take into account when determining an appeal. Welcome clarification has now been provided by the Supreme Court, in the recent case of HM Inspector of Health and Safety v. Chevron North Sea Limited [2018] UKSC 7.
This case arose out of an inspection, in 2013, of one of Chevron’s offshore installations in the North Sea. During the inspection, the HSE inspector formed the view that the stairs and platforms leading to the installation’s helideck had corroded and weakened, and were therefore unsafe. The concern was that the steelwork could give way under a person’s weight, resulting in them falling through when trying to access the helideck. There was particular concern that this could happen during an evacuation. The HSE inspector, therefore, served a Prohibition Notice on Chevron.
Chevron’s belief was that the steelwork was in a perfectly safe condition. The company duly marked an appeal to the Employment Tribunal and, in July 2013, sent a sample of the steelwork away for expert analysis. This eventually returned the conclusion that all of the relevant steelwork met the requisite British Standard and there was no risk of a person falling through it. On the basis of this analysis, there was not, and never had been, any risk to the safety of anyone on board Chevron’s installation. Understandably, Chevron sought to rely on this expert evidence in the appeal.
Following an initial appeal in the Inner House, from which further leave to appeal was granted, the narrow question that the Supreme Court was ultimately asked to determine was whether the tribunal could have regard to the expert evidence produced by Chevron, or whether it was limited to considering only “…information that was available, or ought reasonably to have been available, to an inspector at the time of service of the notice”.
Both parties agreed that, in a Section 24 appeal, the tribunal is required to form its own view of the facts and to focus on any risk which existed at the time that the relevant notice was served. Where they differed was on the question of what material the tribunal was entitled to take into account when determining the factual question of whether a risk existed at the time of service of the notice and, if so, what that risk was.
In determining the appeal in favour of Chevron, the court held that “…when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion but against the notice itself…”.
Although the court said an appeal involved the tribunal looking at the facts on which the notice was based, and the inspector’s opinion about the risk could be relevant as part of the evidence, the judges added that they could “see no good reason for confining the tribunal’s consideration to the material that was, or should have been, available to the inspector. It must…be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was”.
In other words, the role of the tribunal is to determine, as a matter of fact, whether any risk to safety actually existed at the time that the notice in question was served. That is materially, and crucially, different from the terms of Section 22 of the 1974 Act, which permits an inspector to serve a Prohibition Notice if he or she is “…of the opinion that” there is “…a risk of serious personal injury”.
The court was at pains to make clear that there should be no criticism of an inspector if an appeal reaches a different view about the existence of a safety risk, recognising that these decisions are often taken as a matter of urgency, are always a matter of opinion and are taken by inspectors in the utmost good faith.
Equally, the court rejected the suggestion that allowing additional information to be considered on appeal would somehow reduce the effectiveness of Prohibition Notices as a tool to protect employee safety. After all, it is only if the additional evidence demonstrates that there was no risk to safety that an appeal will succeed. Employers who do not take the necessary steps to protect their employees will still, quite properly, find their activities restricted or stopped entirely by the service of a notice.
What is clear from the court’s decision is that while these notices will remain an effective tool against those organisations who do not give sufficient importance to health and safety, businesses who receive a notice, served in good faith, in relation to a risk that did not in fact exist, now have a route to clear their name and protect their revenue stream.
