Regulators in the UK often serve enforcement notices on companies as a means of securing compliance with health and safety legislation. Inspectors can serve either an improvement notice (which require a breach to be remedied within a specified period) or a prohibition notice (which direct that an activity must be suspended until matters giving rise to a specified risk have been remedied).

Both improvement and prohibition notices can only be served when an inspector “is of the opinion that a person is contravening one or more of the relevant statutory provisions”. When serving a prohibition notice, in addition to this requirement, the inspector must also be of the opinion that the activity (to which the statutory provision applies) involves a risk of serious personal injury.

Both types of notices can be appealed by the recipient to the Employment Tribunal. The Employment Tribunal “may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.”

In Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 (Admin), Mr Justice Charles decided that, on appeal, the employment tribunal is free to reach its own decision but that it must focus on what the situation was on the ground when the notice was served. The tribunal is not to “close its eyes” to later events, however it cannot use the benefit of hindsight.

In relation to improvement notices, in MWH UK Limited v Victoria Susan Wise (H.M. Inspector of Health & Safety) [2014] EWHC 427 (Admin), the court reinforced the tribunal’s autonomy as stated in Chilcott. Mr Justice Popplewell decided that, on an appeal from the imposition of an improvement notice, the employment tribunal “reaches its own decision” having regard to the information that was, or ought reasonably to have been, before the inspector at the time the notice was served. The judge also stated that a tribunal must adopt the “putative position” of the inspector and form its own view as to the cause of any breach of duty.

On the facts of this case, the employment tribunal was correct in modifying an improvement notice, which wrongly identified as “incompetence” the reason for a construction design and management co-ordinator (CDMC)’s failure to advise the client that no work should start until a full asbestos survey was carried out. Rather, and on the basis of the evidence before the Tribunal, the improvement notice should have required the CDMC to put in place an “effective system” to ensure all the relevant parties involved on the project had been given sufficient advice on the necessity of a full survey. The appeal was dismissed.

In 2014, the Court also confirmed the position when an appeal relates to a prohibition notice. In Rotary Yorkshire Ltd v Hague [2014] EWHC 2126 (Admin) (appeal outstanding), Mr Justice Collins also applying Chilcottdecided that it was not reasonable for the inspector to issue a prohibition notice where “lesser action was regarded as sufficient protection” and that the Tribunal should have considered the inspector’s other available means to deal with a situation.

On the facts of the case, the risk of serious personal injury identified by the inspectors as justifying a prohibition notice was in relation to exposed conductors on the electrical system on site. The inspector issued a prohibition notice based on the risk that the conductors might be live, despite acknowledging the absence of a system to prove the same. Mr Justice Collins considered the “disadvantage” a prohibition notice on a company register can cause and decided that it would have been possible for the inspectors to “extend the investigation” to await testing the following day. The appeal was allowed and the notice quashed.

These two cases do not break new grounds but confirm the difficult balance the Employment Tribunal has to reach during an appeal of an enforcement notice. Whether a company should appeal a notice remains a key decision. Both types of notice will remain on a company’s record and may have to be declared in tenders. In addition, they can be brought up in future proceedings as evidence of a history of non-compliance. If a company does not accept the contents of a notice served on it, appealing should be given real consideration.