In recent years the High Court has dramatically altered in favour of businesses the approach to be taken when considering Appeals against Prohibition Notices. It used to be the case that the only question for a Tribunal considering an Appeal was whether an inspector reasonably believed, on the evidence before him at the time, that there was a risk of serious personal injury such that he ought to prohibit the activity until it was made safe.
In the Appeal of a Prohibition Notice in the case of Rotary Yorkshire Limited v Sarah Jane Hague (one of Her Majesty's Inspectors of Health & Safety)  EWHC 2126 (Admin) Mr Justice Collins concluded that the existence of a Prohibition Notice on the register against a company could produce a disadvantage, thus it was reasonable only to issue such a Notice if it was clearly needed.
A Prohibition Notice was issued to prevent work on electrical transformers on the basis that there was a risk that the system could be energised and made alive.
Notwithstanding the fact that HSE Inspectors considered a Prohibition Notice was required even though the risk was small, Collins J took the view that the Court could take into account subsequent evidence that the parts were in fact dead and the disadvantage caused to a company by the existence of a Prohibition Notice on the register.
The Inspector could have approached the matter differently by issuing a direction that the high voltage room and its contents be left undisturbed until tests were carried out by an authorised person on site the following day.
Following this judgement, Inspectors will need to bear in mind that subsequent evidence that shows that was not reasonable, or that simple measures could have been taken to avoid the risk while verify that belief, may mean the notice is capable of being challenged.
An Inspection of a high voltage room on a major construction site by a team of inspectors from the HSE found two transformers being commissioned. Switches serving the transmitters seemed to be dead. Exposed conductors at the rear of the transformers would have been dead if the left hand switch was indeed dead. If not, the conductors could have been live and presented a danger of death or serious injury.
The Inspectors could not be sure that although the switch was in the off position the conductors were not live as there was no proof available that when the switch was in the off position the conductors were in fact dead.
One of the Inspectors Sarah Jane Hague served a Prohibition Notice on the Appellant company preventing access to the high voltage room on the basis that the Defendant had not prevented access to conducting parts of the electrical system that could be energised and made life.
On the day after the Prohibition Notice was served, an authorised person testing the equipment confirmed that it was indeed dead and that the electrical system could not have been energised and made live (although this was not known to the Inspector at the time the Prohibition Notice was served)
At first instance a Tribunal dealing with the company's appeal upheld the Prohibition Notice.
Although the Tribunal did not accept that there was a risk, in the words of the Prohibition Notice "that the system could be energised and made live", it formed the view that the real concern of the Inspectors was that there was no system in place overseen by a senior authorised person to prove that the parts were dead. The Tribunal decided that there was a risk, however remote that, in the absence of evidence to the contrary, the exposed conductors might be live.
The Tribunal decided that since it took the view that there was no more than a negligible risk that there might be energisation (the words of the Notice) it would modify the Notice to reflect the Inspector's real belief and so replaced the words in the Notice "can be energised and made live" with the wording "are exposed and cannot be proved dead".
Mr Justice Collins' approach to the case relied heavily in the guidance of Mr Justice Charles in the case of Chillcott v Thermal Transfer Limited  EWHC 2086 (Admin) particularly paragraphs 10-12. An issue of particular importance to Collins J was whether the Court could consider evidence which was not necessarily available to the Inspector at the time he or she issued Prohibition Notices.
"In determining whether or not that risk exists at that time, the Court does not close its eyes to matters that occurred after that time, but that is not the same approach as I would understand generally to be the expression 'judged with the benefit of hindsight'. What the Court's function is, is to identify on the evidence before it, which is not restricted to matters that were in existence before a particular date, what the situation was at that particular date. Did the relevant risk exist?"
It was certainly important to Collins J that testing on the day after the Prohibition Notice established that the contacts were indeed dead and that the most experienced member of the HSE team Mr Burley, a Principal Specialist Inspector, indicated that had the Appellant been able to prove on the day of the inspection that the conductors were dead, a Notice would not have been issued.
This seemed to satisfy Collins J that it was not the lack of a system to prove that parts were not live which was the basis for the Prohibition Notice. This was the justification for the amendment produced by the Tribunal at first instance.
What was left was essentially a Prohibition Notice in relation to a negligible risk which proved to be no risk at all a day later.
Collins J considered the above in the context of submissions made to him on behalf of the Appellant that a Prohibition Notice could have a detrimental effect on the company and that there was an alternative available to the HSE on the day of the inspection, whereby the HSE could have directed the Appellant that the room and its contents should be left undisturbed pursuant to Section 20(2)(e) Health & Safety at Work Etc. Act 1974.
The following factors may be material in deciding whether a Prohibition Notice is justified;
- The potential economic and reputational consequences of a Prohibition Notice to a company
- The remoteness of the risk notwithstanding the potential consequences if it materialises.
- Evidence subsequently obtained after the Inspector issues the Notice
- Alternative methods of ensuring safety, whilst real level of risk is established