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    COURT OF APPEAL UPHOLDS HSE ENFORCEMENT ACTION

    consultant1HSE correct to prohibit without prior opportunity to prove safety

    Burges Salmon LLP has reported (19 June 2015) a Court of Appeal judgement in which an HSE Inspector has won her appeal against a decision of the Administrative Court (the “Court”) which quashed a prohibition notice she had served on Rotary Yorkshire Limited (“RYL”) in December 2012. The report states:

    “The prohibition notice was issued following the inspector’s visit to a construction site in Leeds on which RYL was installing mechanical and electrical plant. The inspector had found a high-voltage room containing exposed electrical conductors which, if live, could have caused serious burns or death by electric shock. The Company was unable to provide documentary proof that, when the switch was in the off position, the electrical conductors were dead. There was no authorised person available on site that day to test the conductors to prove the situation either way.

    The following day, an authorised person established that the conductors were indeed dead (and had been the previous day during the inspection). RYL therefore appealed to the Employment Tribunal (the “Tribunal”) against the prohibition notice. Although the Tribunal modified the wording, the inspectors’ decision to issue the prohibition notice was upheld.

    RYL appealed the decision of the Tribunal to the Court which quashed the prohibition notice. The reasons given by the Court included the fact that a prohibition notice was not the only way of dealing with the situation and the inspector could have directed (under s.20(2)(e) of the Health and Safety at Work Act 1974 (“HSWA”)) that the relevant area remained undisturbed while testing took place. Further, the Court noted that service of a prohibition notice was recorded on a publicly available website and therefore could have a detrimental effect on a company’s business.  It should therefore only have been served if clearly needed.

    The inspector went on to appeal this decision to the Court of Appeal on three grounds:

    1. The Court had been wrong to judge the enforcement decision with hindsight;
    2. The Court should have found that any commercial disadvantage to a company caused by the registration of a prohibition notice was irrelevant; and
    3. The Court had erred in holding that the use of the inspector’s statutory power under s.20(2)(e) HSWA could be an acceptable alternative to a prohibition notice where the inspector had concluded that there was a risk of serious personal injury.

    The Court of Appeal agreed with the inspector on all counts. First, the question was whether there was a risk of serious personal injury on the facts known to the inspector at the time of the decision. Secondly, any commercial disadvantage to a company caused by the registration of a prohibition notice was irrelevant. Finally, where an inspector had already concluded that there was a risk of serious personal injury, there was no requirement under s.20(2)(e) to ask the contractor to remedy the error.”

    Rotary Yorkshire Limited v Sarah Jane Hague (Inspector of Health and Safety) [2015]

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