The Supreme Court, in the recent case of HSE v Chevron North Sea Limited on 8 February 2018, has widened the test to be applied on an appeal against enforcement notices served by HSE or Local Authority Inspectors under Sections 22 and 23 of the Health and Safety at Work Act 1974.
The court ruled that an employment tribunal is entitled to take into account all of the evidence relevant to the circumstances existing at the time the notice was served, including information coming to light afterwards.
Dutyholders wishing to appeal against the service of an improvement, or prohibition notice, served by the HSE or local authority must bring proceedings in the employment tribunal.
Previously, the relevant test (in England) was whether service of the enforcement notice was justified, on the facts available to the inspector at the time the notice was served, and information available afterwards was irrelevant.
Facts in Chevron case
An inspection of an offshore installation operated by Chevron North Sea Ltd (Chevron) resulted in the service of a prohibition notice in respect of corrosion of stairways and staging as the inspector felt that there was a risk of serious personal injury from falling through them.
Chevron obtained an expert’s report that all the metalwork passed the British Standard strength test and that there was, in fact, no risk of injury. Chevron appealed the notice to the Employment Tribunal. The tribunal ruled that it was entitled to consider the expert evidence and cancelled the notice. The inspector unsuccessfully appealed to the Scottish Inner House, which approved the tribunal’s decision and held an appellant was entitled to whatever relevant evidence that was available at the time of appeal.
The Chevron case was referred to the Supreme Court because the decision created a direct conflict between the Scottish and English legal position on the test to be applied when considering the appeal of an enforcement notice.
Supreme Court decision
The Supreme Court confirmed that when an inspector served a notice, s.22 was concerned with whether he was of the opinion that the activities in question involved a risk of serious personal injury. However, on dealing with an appeal against the notice, the tribunal’s focus was not solely concerned with the inspector’s opinion but with the notice itself. The tribunal was, therefore, able to look at all of the facts on which the notice itself was based.
The reasons why the inspector formed the opinion and served the notice might be relevant in determining whether the risk existed, but there was no good reason to restrict the tribunal’s consideration to the material that was available to the inspector. The tribunal was, therefore, entitled to have regard to any other evidence which assisted in ascertaining what the risk, if any, in fact was.
Enforcement notices can have serious financial, operational and reputational implications for businesses. We often advise and represent dutyholders at appeals, but the decision in Chevron means that in future it may be easier and more worthwhile appealing against a notice where it is possible to gather evidence to show there is no serious risk of personal injury, even if such evidence was not available when the notice was issued.