We often find that clients give limited, if any, thought to whether or not an improvement notice or prohibition notice (“Notice”) issued by the HSE should be appealed. Whilst information on the appeal process must be provided by the HSE at the time of issuing the Notice, in our experience, many recipients assume that if it has been issued, it must be valid, and hope that if they satisfy the requirements of the Notice, this will result in no further action.
This may be correct, but it is not necessarily the case. Our advice is to always carefully consider the merit of an appeal bearing in mind that details of the Notice will be available on the HSE’s Public Register of Enforcement Notices for a period of five years. Thereafter, they can still be accessed on the Notice History Database and in the event of a prosecution, either as a result of the alleged breach which led to the Notice, or as a result of a separate incident at a later date, the Notice is likely to be referred to by the prosecution, who may seek to use it as evidence of “bad character” which will have an impact on the level of fine imposed. There are also likely to be implications for companies issued with a Notice given that many are required to disclose these when tendering for work.
Section 21 Health and Safety at Work etc. Act 1974 (HSWA) states that where an inspector is of the opinion there has been a contravention of one or more of the relevant statutory provisions in circumstances that make it likely that the contravention will continue or be repeated, s/he may serve an improvement notice.
Under Section 22 HSWA a prohibition notice should be served if an inspector is of the opinion that an activity carried on (or likely to be carried on) involves (or will involve) a risk of serious personal injury.
The appeal process takes place in the Employment Tribunal and whilst there is no exhaustive list of the grounds of appeal, some examples for the reasons for appeal include: the inspector wrongly interpreted the law or exceeded his / her powers; no contravention of the relevant statutory provision has occurred/will occur; the Notice has been issued prematurely.
Until recently, case law had determined that where a Notice is appealed, the tribunal is not only considering whether the decision was reasonable but whether it was appropriate to serve a Notice at the time the inspector did so. Essentially, the case law directed the tribunal to decide whether they would have issued a notice at that point in time based on the information available to the inspector at that time.
However, the case of HM Inspector of Health and Safety (Appellant) v Chevron North Sea Limited (Respondent) which was decided by the Supreme Court on 8 February 2018 has shifted this position. The case involved a prohibition notice served on Chevron on the basis that a set of stairs allegedly created a risk of personal injury. The Notice was appealed by Chevron as a result of an expert report which was obtained eleven months after the Notice was issued and which stated there was no risk of personal injury and that the stairs complied with the relevant British Standard.
Lady Black in considering the issue stated the following:
“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.”
Consequently, the appeal was dismissed.
Ordinarily an appeal of a Notice must be brought within 21 days. However, the case of Chevron means that recipients should not only give careful consideration to appealing a Notice at the time of issue, but should continue to keep this under review. In the event that further information comes to light, the merits of an appeal should be re-evaluated. Recipients can no longer afford to consider a Notice as a “minor” issue and something to simply acquiesce to. The potential financial, reputational and operational impact of the Notice cannot be overlooked.