Employment Tribunal can consider subsequent evidence in appeals against Health & Safety Prohibition Notices

In considering an appeal against a Prohibition Notice, an Employment Tribunal could properly consider evidence that came into existence after the…

HM Inspector of Health and Safety v Chevron North Sea Limited (Scotland) [2018] UKSC 7

Executive summary

In considering an appeal against a Prohibition Notice (“the Notice”) under s.24 of the Health and Safety at Work etc. Act 1974 (“the Act”), an Employment Tribunal could properly consider evidence which had been available at the time of the Notice and also that came into existence after the Notice was issued.

Background

The respondent company was served with a Notice to cease using a main walkway following a planned site inspection at an offshore installation. The Health and Safety Inspector observed visible corrosion on the stairways and gratings which led to the site’s helideck and considered the walkway to be unsafe as there was a risk of serious personal injury.

Following the inspection, the respondent sent the metalwork for testing which proved that it met the British Standard requirement for floor surfaces and walkway strength. The respondent appealed to the Employment Tribunal against the Notice under s. 24 of the Act.

The Employment Tribunal considered the test results and cancelled the Notice, finding that it had been unnecessary as there had been no risk of injury. The tribunal held that subsequent evidence which had not been available to the inspector could be taken into account if it “shed light” on the situation at the time of the Notice.

Court of Session

HM Inspector of Health and Safety appealed to the Court of Session and relied on the English Court of Appeal decision in Rotary Yorkshire v Hague [2015] EWCA Civ 696 which held that an appeal against a Notice should only consider evidence that was available or ought reasonably to have been available to the inspector at the time of serving the notice. The Court of Session unanimously refused the appeal and found that the Rotary Yorkshire case had been wrongly decided. There was nothing in s.24 which restricted the appeals process to points of law and the tribunal had been entitled to consider all of the facts relating to the risk of serious personal injury at the time of the notice.

The Chevron decision resulted in divergent approaches being taken between Scotland and England on the interpretation of a piece of UK wide legislation with English tribunals following the Rotary Yorkshire line where “new evidence” was not permitted whilst in Scotland, tribunals could follow the decision in Chevron allowing “new evidence” to be taken into account.

The Health and Safety Inspector brought a second appeal to the Supreme Court.

Supreme Court

The main issue in front of the Supreme Court was whether a tribunal is confined to considering material which was, or could have reasonably been, known to the Health and Safety 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 unanimously dismissed the appeal, stressing that a Notice is an important tool which ensures the safety of personnel at work, however, it also has the potential to cause harm to the business on which it is served. At the time of serving a Notice, an Inspector must form an opinion based on the available facts having regard to the immediate safety of personnel. However, the court held that the focus then shifts to whether the risk of personal injury actually existed at the time. The court found that there was no good reason to restrict the evidence available to the tribunal. The tribunal was correct in considering all of the evidence available to make a fully informed determination on the facts at the time of the Notice.

Comment

The Supreme Court has now provided some welcome clarity which will allow both jurisdictions to interpret this UK wide legislation in a consistent and, what many would say, a common sense way. 

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