We have previously reported on a prohibition notice issued against Rotary Yorkshire Limited (RYL) in December 2012 which was quashed by the Administrative Court following an appeal. The prohibition notice was issued in relation to a high voltage room which included exposed electrical conductors which, if live, could have posed a serious risk. RYL was unable to produce at the time of the HSE inspector’s visit any documentation to confirm that the conductors were not live when the switch was in the off position and there was no authorised person on site to test the conductors to prove that was the case.

The next day an authorised person was able to prove that the conductors were indeed dead and an initial appeal to the Employment Tribunal resulted in the wording of the prohibition notice being changed, but not the quashing of the notice itself. However, RYL then appealed to the Administrative Court which did quash the notice, a significant part of the reasoning being that there were other less onerous options available to the HSE (specifically a direction to leave the area undisturbed using their powers under s 20(2)(e) HSWA). Another factor was that the service of the notice (which could not be withdrawn other than by appeal) was noted on a publically available website which would have a detrimental affect on the business and so should only be issued in circumstances where it was clearly required.

The HSE went on to appeal the decision to the Court of Appeal which ultimately upheld the enforcement  notice.

The Court of Appeal said that the appeal to the Administrative Court could only proceed on the basis of a point of law. It was not for the judge in effect to treat the hearing as a complete reassessment of the inspector’s decision. Whilst noting that the correct approach for the Employment Tribunal was to decide whether it would have served the notice on the basis of information available to the inspector, or, importantly, which ought reasonably to have been available following suitable enquiries, the Court of Appeal was satisfied the test had been appropriately applied in this case. Therefore the judge in the Administrative Court was not entitled to substitute his decision for that of the Employment Tribunal, even though he had come to a different conclusion. The specific factors considered by the judge, whilst not irrelevant, had been considered by the Employment Tribunal and discounted.