The education sector is one of the most difficult environments in which to manage health and safety.
The law applies to risks to staff, students and visitors created by work activities (including off-site activities such as trips and excursions). The law also applies to the work of on-site contractors.
Where organisations are believed to have breached their legal duties, HSE and local authority inspectors have the power to issue enforcement notices (improvement and prohibition) under Sections 22 and 23 of the Health and Safety at Work Act 1974 which can bring any specified activity to a halt and/or require that work is undertaken to address the issue causing a risk to health and safety. Details of enforcement notices issued are published online and records are kept for five years.
Enforcement notices can have serious financial, operational and reputational implications for education providers. This could include affecting the delivery of essential services and their ability to attract new students and participate in local authority tenders, as well as threatening existing commercial relationships.
Appealing against an enforcement notice
Previously, aggrieved institutions wishing to appeal against such notices had to establish at an employment tribunal that the service of the enforcement notice was not justified on the facts available to the inspector at the time the notice was served. This had meant that information available after the service of the notice was irrelevant and could not be relied on.
A recent ruling by the Supreme Court in the Scottish case of HSE v Chevron North Sea Limited on 8 February 2018 will give organisations more power to challenge unfair notices as the test to be applied has been widened to allow an employment tribunal 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.
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 due to corrosion of stairways and staging as the HSE 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 who 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. The 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 ruled that when dealing with an appeal against an enforcement notice, the tribunal was entitled 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 it would be unfair to restrict a tribunal to prevent it to take into account relevant information that has come to light after a notice has been served.
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.