JUDGMENT
HM Inspector of Health and Safety (Appellant) v
Chevron North Sea Limited (Respondent)
(Scotland)
before
Lord Mance, Deputy President
Lord Sumption
Lord Reed
Lord Hodge
Lady Black
JUDGMENT GIVEN ON
8 February 2018
Heard on 14 December 2017
Appellant Respondent
Andrew R W Young QC Peter Gray QC
Ian Wright Barry Smith
(Instructed by Anderson
Strathern LLP
)
(Instructed by Clyde &
Co
)
Page 2
LADY BLACK: (with whom Lord Mance, Lord Sumption, Lord Reed and
Lord Hodge agree)
1. Chevron North Sea Ltd operates an offshore installation in the North Sea
(“the installation”). In April 2013, the installation was inspected by Mr Conner in
his capacity as one of Her Majesty’s Inspectors of Health and Safety. Mr Conner
was accompanied by three colleagues with specialist expertise of particular
relevance to the inspection. A vital part of the installation is the helideck, the
principal means of reaching the installation being by helicopter. The inspectors
examined the condition of the stairways and stagings providing access to the
helideck and formed the view that corrosion had rendered them unsafe so that there
was a risk of serious personal injury from falling through them. Mr Conner therefore
served a prohibition notice on Chevron under section 22 of the Health and Safety at
Work etc Act 1974 (“the 1974 Act”). Chevron appealed against the prohibition
notice to an employment tribunal under section 24 of the 1974 Act. The question for
us to determine is what approach a tribunal hearing such an appeal should take. In
particular, in reaching its decision whether to affirm, modify or cancel the notice, is
the tribunal confined, as the appellant contends, to the material which was, or could
reasonably have been, known to the inspector at the time the notice was served, or
can it, as the respondent contends and the First Division of the Inner House of the
Court of Session held, take into account additional evidence which has since become
available?
The relevant provisions of the 1974 Act
2. Section 22 of the 1974 Act provides:
“22. Prohibition notices
(1) This section applies to any activities which are being or
are likely to be carried on by or under the control of any person,
being activities to or in relation to which any of the relevant
statutory provisions apply or will, if the activities are so carried
on, apply.
(2) If as regards any activities to which this section applies
an inspector is of the opinion that, as carried on or likely to be
carried on by or under the control of the person in question, the
activities involve or, as the case may be, will involve a risk of
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serious personal injury, the inspector may serve on that person
a notice (in this Part referred to as ‘a prohibition notice’).
(3) A prohibition notice shall –
(a) state that the inspector is of the said opinion;
(b) specify the matters which in his opinion give or,
as the case may be, will give rise to the said risk;
(c) where in his opinion any of those matters
involves or, as the case may be, will involve a
contravention of any of the relevant statutory
provisions, state that he is of that opinion, specify the
provision or provisions as to which he is of that opinion,
and give particulars of the reasons why he is of that
opinion; and
(d) direct that the activities to which the notice
relates shall not be carried on by or under the control of
the person on whom the notice is served unless the
matters specified in the notice in pursuance of paragraph
(b) above and any associated contraventions of
provisions so specified in pursuance of paragraph (c)
above have been remedied.
(4) A direction contained in a prohibition notice in
pursuance of subsection (3)(d) above shall take effect –
(a) at the end of the period specified in the notice; or
(b) if the notice so declares, immediately.”
3. Section 24 provides:
“24. Appeal against improvement or prohibition notice
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(1) In this section ‘a notice’ means an improvement notice
or a prohibition notice.
(2) A person on whom a notice is served may within such
period from the date of its service as may be prescribed appeal
to an employment tribunal; and on such an appeal the tribunal
may either cancel or affirm the notice and, if it affirms it, may
do so either in its original form or with such modifications as
the tribunal may in the circumstances think fit.
(3) Where an appeal under this section is brought against a
notice within the period allowed under the preceding
subsection, then –
(a) in the case of an improvement notice, the
bringing of the appeal shall have the effect of
suspending the operation of the notice until the appeal is
finally disposed of or, if the appeal is withdrawn, until
the withdrawal of the appeal;
(b) in the case of a prohibition notice, the bringing of
the appeal shall have the like effect if, but only if, on the
application of the appellant the tribunal so directs (and
then only from the giving of the direction).
(4) One or more assessors may be appointed for the
purposes of any proceedings brought before an employment
tribunal under this section.”
4. Also material to a consideration of the question at issue in this appeal is
section 33 which provides:
“33. Offences
(1) It is an offence for a person –
…
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(g) to contravene any requirement or prohibition
imposed by an improvement notice or a prohibition
notice (including any such notice as modified on appeal)
…”
The central facts
5. The prohibition notice served on Chevron stated that the inspector was of the
opinion that there was a risk of serious personal injury because:
“The steel grating of the stagings and the stairway treads are in
a weakened condition because of corrosion which compromises
safe evacuation.”
6. Having launched an appeal in May 2013, Chevron arranged in July 2013 for
the metalwork which had been of concern to the inspector to be removed from the
installation and tested. The results of the testing were set out in an expert report
dated March 2014. In short, with the exception of a panel which had been damaged
during the inspection by an inspector striking it with a fire fighting axe in order to
test the extent to which it was corroded, all the metalwork passed the British
Standard strength test, and there was no risk of personnel being injured by falling
through it. Without the damage, the damaged panel may well also have passed the
test, but the damage made it impossible to determine its safety.
7. Chevron sought to rely upon the expert report as part of their appeal to the
tribunal. The inspector opposed that on the basis that the tribunal must focus on the
information that was available, or ought reasonably to have been available, to an
inspector at the time of the service of the notice. The results of the expert testing
could not have been available to the inspector when he decided to serve the notice
and so, in his submission, no regard could be had to them by the tribunal.
8. The tribunal prudently approached the matter in two alternative ways. First,
it looked at the position on the basis of the information that was or ought to have
been available to the inspector, without having regard to the subsequent testing and
analysis. On that basis, it would have affirmed the prohibition notice, albeit in a
modified form. It then looked at the matter again, taking into account the expert
evidence that came into existence later. Approaching things in that way, it concluded
that at the time of the service of the notice, there was not, in fact, a risk of serious
personal injury. As it decided that it was entitled to look at the later material, it
cancelled the notice.
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9. The inspector appealed unsuccessfully to the First Division of the Inner
House against both of the alternative conclusions of the tribunal. I can confine my
attention to the second of the two alternatives, in relation to which the Inner House
held that the tribunal had been correct to have regard to the subsequent testing and
analysis, and entitled to accept that evidence. In the light of the fact that the Court
of Appeal in England and Wales had taken a different view on the proper approach
to an appeal under section 24 of the 1974 Act, in the case of Hague (One of Her
Majesty’s Inspectors of Health and Safety) v Rotary Yorkshire Ltd [2015] EWCA
Civ 696, the Inner House gave the inspector leave to appeal to this court on the point.
The framework of the relevant provisions of the 1974 Act
10. A prohibition notice directs that the activities to which it relates shall not be
carried on unless the matters that, in the opinion of the inspector, gave rise to the
risk of serious personal injury have been remedied (section 22(3)(d)). The notice can
be drawn up to take effect immediately or at the end of a specified period (section
22(4)). Where the notice is not one with immediate effect, section 23(5) enables an
inspector to withdraw it at any time before the date on which it is to take effect.
There is no provision for an immediate notice to be withdrawn; it appears that the
only way, under the statutory scheme, in which such a notice can be dislodged is by
an appeal. A prohibition notice is not automatically suspended by an appeal.
However, the appellant may apply to the tribunal for a direction suspending it from
the date of the direction until the appeal is finally disposed of or withdrawn (section
24(3)). A public database of notices is kept by the Health and Safety Executive.
Notices are entered on the database by virtue of statutory requirements in some
cases, and otherwise as a matter of policy. However, registration is deferred to allow
for the appeal process and, in the event of a successful appeal, does not take place.
11. It is an offence to contravene a prohibition imposed by a prohibition notice
(section 33 of the 1974 Act). This applies in full force to activity during the appeal
period except in relation to a period during which the tribunal has directed that the
notice is suspended.
The practical effect of a prohibition notice
12. Understandably, the appellant is at pains to emphasise, as an important part
of his argument in support of his appeal to this court, that it is vital for inspectors to
be able to take prompt and effective action to ensure compliance with the provisions
of the 1974 Act. A prohibition notice is a powerful tool in the inspector’s hands. It
not only enables him to step in when he is of the opinion that a particular activity
will involve a risk of serious personal injury, it also improves public safety by
encouraging employers to have good systems in place so that they can demonstrate
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to the inspector that there is no material risk and thereby avoid the disruption of a
prohibition notice.
13. The service of a prohibition notice on a business has the potential to do
considerable harm to it. Having to cease the activity in question will inevitably result
in disruption and is likely also to have a financial cost, but there may be other serious
consequences as well, including significant damage to the business’s reputation and
its ability to tender for contracts. This is reflected in the fact that, according to the
appellant, a very common motivation for an appeal against a notice is to avoid
registration of the notice on the Health and Safety Executive’s public database.
The issue
14. It is common ground between the parties that a section 24 appeal is not
limited to a review of the genuineness and/or reasonableness of the inspector’s
opinion, but requires the tribunal to form its own view of the facts, paying due regard
to the inspector’s expertise. It is also common ground that the tribunal should be
focussing on the risk existing at the time when the notice was served. These agreed
propositions still leave room, however, for the debate about what material the
tribunal is entitled to take into account when forming its view of the facts as they
were at the material time.
15. The appellant invites us to adopt the reasoning of the Court of Appeal in the
Rotary Yorkshire case (supra). Rotary Yorkshire were arguing for the broad
interpretation of section 24 supported by Chevron in the present case and the
inspector for the more limited interpretation for which the appellant contends. Laws
LJ (with whom the other members of the court agreed) said:
“31. … the question for the inspector is whether there is a
risk of serious personal injury. In reason such a question must
surely be determined by an appraisal of the facts which were
known or ought to have been known to the inspector at the time
of the decision. He or she is concerned with the prevention of
injury at that time, that is the focus of the provision, which, it
should be remembered, contemplates action in a possible
emergency. The employment tribunal on appeal are and are
only concerned to see whether the facts which were known or
ought to have been known justify the inspector’s action.
…
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34. To accede to [Rotary Yorkshire’s] argument would, I
think, risk distorting the section 22 function. The primary
question for the employment tribunal is whether the issue of
the notice was justified when it was done. An inspector may
rightly apprehend a risk and be justified in acting on his or her
apprehension even though later necessarily unknown events
may demonstrate that, in fact, there was no danger. Section 24
is not, in my judgment, to be construed so that it may appear to
call in question the propriety of a notice which it may well have
been the inspector’s duty to issue at the time.”
16. This reasoning did not commend itself to the Inner House in the present case.
Lord Carloway said, with the agreement of the other two members of the court who
also added helpful reasoning of their own:
“28. The fundamental problem with the approach of Laws LJ
is that it prohibits an appeal on the facts in a situation where it
can be demonstrated that the facts or information upon which
the inspector proceeded were wrong. That is the essence or
purpose of many appeals on the facts. In short, there is no sound
basis for restricting appeals under section 24 to what would in
essence be a form of judicial review of the inspector’s opinion.
An appeal on the facts is a much wider concept and … it
enables an appellant to prove, using whatever competent
information is available at the time of the tribunal’s hearing on
the appeal, that the factual content of the notice was wrong and
that, accordingly, however reasonable the inspector’s opinion
was at the time, had the true facts been known, he would not
have reached it.”
17. The answer to the issue which has divided the Court of Appeal and the Inner
House does not jump out from the wording of section 24, and the matter must
therefore be considered in the light of the statutory scheme as a whole. This leads
me to conclude that the Inner House was correct in its interpretation of the section.
18. When the inspector serves the notice, section 22 makes clear that what
matters is that he is of the opinion that the activities in question involve a risk of
serious personal injury. If he is of that opinion, the notice comes into existence.
However, as it seems to me, when it comes to an appeal, the focus shifts. The appeal
is not against the inspector’s opinion but against the notice itself, as the heading of
section 24 indicates. Everyone agrees that it involves the tribunal looking at the facts
on which the notice was based. Here, as the inspector spelled out in the notice, the
risk that he perceived arose by virtue of corrosion of stairways and gratings giving
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access to the helideck, and the focus was therefore on the state of that metalwork at
the time when the notice was served. The tribunal had to decide whether, at that
time, it was so weakened by corrosion as to give rise to a risk of serious personal
injury. The inspector’s opinion about the risk, and the reasons why he formed it and
served the notice, could be relevant as part of the evidence shedding light on whether
the risk existed, but I can see no good reason for confining the tribunal’s
consideration to the material that was, or should have been, available to the
inspector. It must, in my view, be entitled to have regard to other evidence which
assists in ascertaining what the risk in fact was. If, as in this case, the evidence shows
that there was no risk at the material time, then, notwithstanding that the inspector
was fully justified in serving the notice, it will be modified or cancelled as the
situation requires.
19. It is important to recognise that it is no criticism of the inspector when new
material leads to a different conclusion about risk from the one he reached. His
decision often has to be taken as a matter of urgency and without the luxury of
comprehensive information. There is no reason for him to be deterred from serving
the notice by the possibility that, should more information become available at a
later stage, his concerns may turn out to be groundless. Indeed, he might just as well
feel less inhibited about serving it, confident that if it turns out that there is in fact
no material risk, the position can be corrected on appeal.
20. The effectiveness of a prohibition notice is in no way reduced by an appeal
process which enables the realities of the situation to be examined by a tribunal with
the benefit of additional information. Once served, the notice provides immediate
protection, reinforced by the existence of criminal sanctions. It is common ground
between the parties that, even if ultimately cancelled by a tribunal, any contravention
of the notice prior to cancellation would still be a criminal offence.
21. Furthermore, there does not seem to me to be any reason to suppose that the
wider interpretation of section 24 would undermine the role that prohibition and
improvement notices play in encouraging employers to have robust systems in place
with a view to demonstrating easily, when an inspection takes place, that no risk
exists. A prohibition notice remains in force during the appeal process, unless
suspended by the tribunal, and such is the disruption and financial loss that this may
cause that employers have plenty of encouragement to do what they can to avoid
getting into such a situation in the first place.
22. The appellant argues that permitting the tribunal to look beyond the material
available to the inspector will introduce into the appeal process undesirable delay
and cost, both financial and in terms of the Health and Safety Executive’s human
resources, when the aim should be that any appeal is concluded speedily. This does
not deflect me from my view as to the correct interpretation of section 24. The appeal
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must be launched within 21 days and its progress thereafter will be under the control
of the tribunal. In any event, the continuing impact of the prohibition notice may
well be an incentive for the employer to marshal his case speedily so as to free
himself from the notice as quickly as possible.
23. Turning to the situation of an employer in receipt of a prohibition notice, it is
clear that there are potent considerations in favour of the wider interpretation of
section 24. As the inspector cannot withdraw an immediate prohibition notice, even
if he is completely convinced by material produced subsequently by the employer,
the only means by which the notice can be cancelled under the statutory scheme is
an appeal. Yet if the appellant’s interpretation is right, in such a case the appeal
process would not dislodge the notice, which would remain in force, with all the
attendant disadvantages for the business, even though the perceived risk never in
fact existed. Indeed, it is even possible that in some cases, in order to be able to
restart the activity named in the notice, an employer might have to carry out works
which have been demonstrated to be unnecessary. The appellant argues that, in
practice, confining the tribunal’s role narrowly would not cause any problems
because, provided with convincing evidence that there was in fact no risk, the
inspector would recognise that and not seek to enforce the notice, although the notice
would still be registered on the public database because, the appellant argues, that is
appropriate to reflect the fact that it was correctly served on the basis of the
information then available to the inspector. This suggested solution does not, in my
view, address the problem. The notice would still have the capacity to damage the
reputation of the employer and his ability to do business. Furthermore, it cannot be
right, in circumstances such as these, that the employer continues, after his appeal
is concluded, to be exposed to the possibility of criminal proceedings, however
improbable it is that proceedings would actually be taken. In addition, the
appellant’s proposal proceeds upon the basis that the inspector is able to accept the
evidence put forward subsequently by the employer, but he may not be able to do
so. In those circumstances, a forum is required in which to determine the continuing
dispute between the inspector and the employer or, putting it more constructively
and in the spirit of the health and safety legislation, to determine whether the
circumstances that concerned the inspector did in fact give rise to a relevant risk.
The appeal process provides that necessary forum.
24. I would therefore interpret section 24 of the 1974 Act as the Inner House did.
In my view, on an appeal under section 24, the tribunal is not limited to considering
the matter on the basis of the material which was or should have been available to
the inspector. It is entitled to take into account all the available evidence relevant to
the state of affairs at the time of the service of the prohibition notice, including
information coming to light after it was served. I would accordingly dismiss the
appeal.
