Following an appeal against a prohibition notice, the Supreme Court has ruled that a Tribunal should consider all available evidence – even information coming to light after the issue of the notice.
Why was Chevron served a prohibition notice?
In April 2013, a prohibition notice was served on Chevron North Sea Ltd (Chevron) under s.22 Health and Safety at Work etc. Act 1974 (the Act). The prohibition notice recorded that corrosion of stairways and staging providing access to the helideck on an offshore installation made them unsafe and created a risk of serious personal injury.
Chevron appealed the notice, and subsequently arranged for the metalwork in question to be tested. The tests confirmed that the metalwork passed the British Standard strength test and presented no risk of personal injury.
Chevron sought to rely on the test results in its appeal.
What did the court say?
Both the Tribunal and the Scottish appellate court held that Chevron could rely on the test results, even though this evidence was not available to the inspector when the prohibition notice was served. These decisions put Scottish law at odds with English law. In particular, in Hague (One of her Majesty's Inspectors of Health and Safety) v Rotary Yorkshire Ltd, the Court of Appeal held that the question for the court was whether the prohibition notice was justified on the facts that were available (or should have been available) to the inspector at the time it was served – it did not matter what information was subsequently available.
Given this difference in approach, the inspector was granted permission to appeal the Chevron decision to the Supreme Court.
The Supreme Court has now confirmed the Scottish approach as correct and has overruled Rotary. The court found that although an inspector is entitled to serve a prohibition notice if he is of the opinion that there is a risk of serious personal injury, the focus on appeal is not whether the inspector’s opinion is correct, but whether the notice is correct.
Therefore, the correct approach is to take into account all evidence which assists in determining the extent of the alleged risk. There is no justification for limiting this to evidence that was or should have been available to the inspector at the time. The Tribunal can therefore have regard to evidence which comes to light after the notice was served.
What impact does this have on businesses?
Prohibition orders can have a significant detrimental impact on a business, both in financial terms as operations are disrupted, and in terms of reputational damage and the impact on a business’ ability to tender for contracts.
The Supreme Court’s decision is therefore very welcome. Not only do we now have long-awaited clarity on the correct (Scottish or English) approach to be taken in considering appeals against prohibition notices, but that clarity has also cleared a path for businesses to respond positively to notices. In particular, the decision in Chevron means that it may be worth launching an appeal against a notice where businesses are confident they can gather evidence to show there is no serious risk of personal injury, even if such evidence is not available at the time the appeal is issued.
An appeal can mean that publication of the notice on the Health and Safety Executive’s public database is postponed pending the outcome of the challenge. The Supreme Court’s widening of the evidence rules could mean that more businesses will now give serious consideration to appeals.
There are still issues, of course. An immediate prohibition notice cannot be withdrawn by an inspector and can only be cancelled via a successful appeal, the timescale for which is driven by the Tribunal. While an appellant can ask the Tribunal to suspend the notice until the appeal is decided, suspension is not guaranteed. Businesses may still be required to put in place potentially unnecessary remedial measures so that they can restart the activity, if the suspension is not granted.
What happens next?
It remains to be seen whether this decision will affect the frequency with which inspectors issue prohibition notices. A welcome effect would be greater dialogue between inspectors and businesses regarding the necessity of issuing a prohibition notice, together with further encouragement for inspectors to engage with the results of testing and internal investigations after the notice has been issued.