Rotary Yorkshire Limited (Rotary) has successfully appealed a prohibition notice which was served on the company during an inspection by the HSE on 13 December 2012. Rotary was responsible for the installation of mechanical and electrical plant on site. After the HSE went into a high voltage room it found exposed conductors. If those conductors had been live, they could have created a risk of death or serious injury. Whilst the inspectors thought the conductors were dead, they could not be sure and Rotary was unable to prove that they were

dead. The HSE inspectors took the view that there should have been a system in place overseen by a senior authorised person who could show, by way of documentary evidence, that the conductors were dead. They therefore issued a prohibition notice forbidding access to the high voltage room other than to make the area safe due to the following reasons:

“You have not prevented access to conducting parts of the electrical system that can be energised and made live. The electrical system is high voltage.”

Rotary appealed the prohibition notice to the Employment Tribunal in the first instance after an authorised person was able to establish the following day that the conductors were in  fact dead, and had also been dead on the day of the HSE’s inspection the previous day. The

Employment Tribunal decided that whilst it was only a remote risk, there was nonetheless a risk the conductors might be live and upheld the notice although they replaced the words “can be energised and made live” with “are exposed and cannot be proved dead”. Rotary appealed that decision on the basis that the notice had been issued prematurely and that the HSE should have waited for the outcome of the inspection the following day. It maintained that the safety of those in the vicinity could have been ensured in the meantime by a direction under s.20 (2) (e) HSWA to require the room and its contents to be left undisturbed. That would not have had the same adverse effect on the company’s record as a prohibition notice. The appeal was heard in the High Court earlier this month.

Following the decision in Chilcott v Thermal Transfer Ltd (2009), the court noted that when determining whether a risk existed at the time of the HSE’s visit, “the court does not close its eyes to matters that occurred after that time.” The reasons behind the notice had to be

assessed and reviewed in the context where the issuing of a notice, which is a matter of public record, could cause a disadvantage to the receiver of the notice, and should therefore only  be used if there was a clear need for it. In this instance, the court found that in circumstances where the HSE inspector accepted that no notice would have been issued if the conductors were proven to be dead, the situation could have been appropriately dealt with by a requirement to leave the site undisturbed under the HSE’s s.20 powers until the following day when the authorised person was available to test the conductors. Breach of such a direction would have been a criminal offence sanctioned in the same way as breach of a prohibition notice. The court found that it was wrong of the Employment Tribunal to find that the issue of a prohibition notice was the only course of action. The appeal was therefore allowed and the notice quashed.