Clyde & Co has acted for Chevron in overturning a prohibition notice issued by the Health and Safety Executive (HSE) in a case now decided in the Supreme Court.
With Clyde & Co's assistance, Chevron had successfully challenged the notice at an employment tribunal in Aberdeen in 2014 and resisted the HSE's appeal against that decision to Scotland's first appeal court, the Inner House of Session, in 2016.
Relying on a conflicting judgment from the Court of Appeal in England on the relevant point of law, the HSE appealed again to the Supreme Court.
In dismissing the HSE's appeal, the Supreme Court has confirmed that a tribunal hearing an appeal against a prohibition or improvement notice under section 24 of the Health and Safety at Work etc. Act 1974 (the Act) is entitled to take into account evidence that was not known (and could not reasonably have been known) to the inspector at the time he issued the notice.
Section 22 of the Act enables an HSE inspector to serve an employer with a prohibition notice if he is of the opinion that an activity carried on by the employer poses a risk of serious personal injury. It is a criminal offence under section 33 of the Act to continue that activity until the matters giving rise to the risk of serious personal injury have been remedied.
The notice can be drawn up to take effect immediately or at the end of a specified period. If the latter, the inspector can withdraw the notice at any time before the date on which it takes effect but an immediate notice cannot be withdrawn. An employer served with a notice can appeal to an employment tribunal under section 24 of the Act. Although an appeal does not suspend the notice, the appellant may ask the tribunal to suspend it until the appeal is disposed of or withdrawn. Notices which are not withdrawn or cancelled on appeal are ultimately registered on a public database by the HSE.
The question for a tribunal faced with a section 24 appeal is whether, on the facts, the notice ought to have been issued. However, on the wording of the statute it is not immediately clear whether the Tribunal is only entitled to have regard to the facts which were known, or ought reasonably to have been known, to the inspector at the time he served the notice.
This was the issue which the Supreme Court had to determine.
During a planned inspection of Chevron's offshore installation in the Captain Field of the North Sea in April 2013, an inspector formed the view that corrosion on the stairways and stagings leading to the helideck rendered them unsafe. He therefore served Chevron with a prohibition notice.
Subsequent laboratory tests showed that the corrosion had in fact not posed a risk of serious personal injury. Chevron sought to rely on these results as part of their appeal against the prohibition notice. The HSE argued that the laboratory tests were inadmissible, as this was not information that was reasonably available to the inspector during the inspection.
The tribunal concluded that it should have regard to the subsequent test results as they shed light on the situation at the time the notice was served and cancelled the prohibition notice. The HSE appealed to the Inner House of the Court of Session, Scotland's highest court.
The Inner House agreed with the tribunal and dismissed the appeal. But because the Court of Appeal in England had recently take a different view on the proper approach to a section 24 appeal, it granted the HSE permission to appeal to the Supreme Court. In Hague (One of Her Majesty's Inspectors of Health and Safety) v Rotary Yorkshire Ltd  EWCA Civ 696, which was decided shortly after the employment tribunal had cancelled Chevron's prohibition notice, the Court of Appeal held that a tribunal should only be concerned to see whether the facts which were known or ought to have been known to the inspector justified his actions; it should not have regard to evidence which comes to light after the event.
The Supreme Court has decided that there is no good reason for confining the tribunal's consideration to the material that was, or should have been, available to the inspector. It observed that a section 24 appeal is not against the inspector's opinion but against the notice itself. Where later evidence shows that there was no material risk at the time, then although the inspector may have been justified in serving the notice on the information available to him, it should be modified or cancelled as the situation requires.
The Supreme Court was not persuaded by the appellant's contention that a broader scope of appeal would deter an inspector from serving a notice out of concern that evidence coming to light in the future may show that he was incorrect. On the contrary, it remarked that he might just as well feel less inhibited about serving a notice, since any mistake could be corrected on appeal.
It also rejected the argument that a wider interpretation of section 24 would undermine the role that notices play in encouraging employers to have robust systems in place with a view to demonstrating easily on inspection that no risk exists. As notices remain in force during an appeal process (unless suspended by a tribunal), the associated disruption and financial loss incentivises employers to avoid getting into such a situation in the first place.
In the Supreme Court's view, there were "potent considerations" weighing in favour of a wider interpretation of section 24. Because an immediate notice cannot be withdrawn, the only means by which a notice can be cancelled is an appeal. However, on the appellant's case, in circumstances such as these where evidence not available to the inspector indicates that the perceived risk never in fact existed, the notice would not be dislodged. Moreover, an employer might have to carry out works shown to be unnecessary in order to restart the activity named in the notice, or else be guilty of contravening a prohibition notice.
The appellant argued that in practice an inspector provided with convincing evidence that there was in fact no risk would not seek to enforce the notice but the Supreme Court did not consider this a satisfactory solution for three reasons:
- The notice would still be registered on the public database, with the capacity to damage the employer's reputation.
- The employer would continue to be exposed to the possibility of criminal proceedings for having contravened a notice, however improbable it is that proceedings would actually be taken.
- An inspector may not be able to accept the evidence put forward subsequently by an employer. In those circumstances, the dispute would need to be referred to a tribunal.
This decision provides welcome clarity on the scope of a section 24 appeal. Employers should be reassured that they no longer face the prospect of a black mark against their name in circumstances where they can demonstrate that, as a matter of fact, the notice should not have been issued in the first place.