• Higher Safety Higher Safety Chipmunk Data Chipmunk Data

    SUPREME COURT RULES ON HSE ENFORCEMENT NOTICES

    Post service evidence can be used to support HSE notice appeals

    The Supreme Court decision in the case of HM Inspector of Health and Safety (Appellant) v Chevron North Sea Limited (Respondent) (Scotland) [2018] UKSC 7 On appeal from [2016] CSIH 29 has now been published.

    The court found in favour of Chevron and against HSE. The effect of the judgement is that appeals against enforcement notices served by HSE Inspectors do not have to be confined to material which was, or could reasonably have been, known to the inspector at the time the notice was served.

    The court confirmed that appeals can take into account additional evidence which has become available after the notice was served. The ruling should increase the chances of success when businesses challenge HSE notices and thereby avoid any unjustified reputational damage.

    Response to court decision

    HSE accepts the judgement of the Supreme Court whilst stressing that the appeal was not about regulatory process or the way HSE inspectors enforce but rather about the test which an Employment Tribunal must apply in considering an appeal against an Enforcement Notice. A spokesperson added:

    “HSE notes the ruling clearly states that no criticism of the inspector or his actions in this case can be suggested, as inspectors often have to take decisions as a matter of urgency and without the luxury of comprehensive information.

    The judgement also noted the important role played by prohibition notices in improving public safety by encouraging employers to have good systems in place to demonstrate that there is no material risk. This ruling will not affect the way HSE inspectors carry out their regulatory duties.”

    The background and reason for the judgement are reproduced below.

    Background to the appeal

    The Respondent operates an offshore installation in the North Sea. In April 2013, the installation was inspected by Her Majesty’s Inspectors of Health and Safety. The inspectors formed the view corrosion had rendered the stairways and stagings to the helideck (a helicopter landing platform) unsafe and served a prohibition notice on the Respondent under s.22 of the Health and Safety at Work Act 1974 (the “1974 Act”).

    In May 2013, the Respondent appealed against the prohibition notice to an employment tribunal under s.24 of the 1974 Act. In July 2013, the Respondent arranged for the metalwork which had been of concern to the inspector to be removed from the installation and tested. The results of the testing showed that all the metalwork passed the British Standard strength test with the exception of a panel which had been damaged during the inspection and could not be tested reliably. There was no risk of personnel being injured by falling through it. The Respondent sought to rely upon the expert report as part of their appeal to the tribunal.

    The issue in the appeal is whether a tribunal is confined to the material which was, or could reasonably have been, known to the inspector at the time the notice was served or whether it can take into account additional evidence which has since become available.

    Reason for judgement

    On an appeal under s.24 of the 1974 Act, the tribunal 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. [24]

    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 allows an inspector to step in when he is of the opinion that a particular activity will involve a risk of serious personal injury, it also encourages employers to have good systems in place to improve public safety. [12] However, the service of a prohibition notice on a business has the potential to do financial and reputational harm to it. [13] ]

    The answer to the issue of what information the tribunal is entitled to take into account when forming its view of the facts at the material time is not clear from the wording of s.24 and must be considered in the light of the statutory scheme as a whole. [17]

    An appeal against an inspector’s notice is not against the inspector’s opinion but against the notice itself. The tribunal in the present case had to decide whether the stairways to the helideck were so weakened by corrosion as to give rise to a risk of serious personal injury. There is no good reason for confining the tribunal’s consideration to the material that was, or should have been, available to the inspector. The tribunal must be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was. If the evidence shows that there was no risk at the material time, then the notice will be modified or cancelled as the situation requires. [18]

    It is no criticism of the inspector when new material leads to a different conclusion about risk from the one he reached. His decision is often taken as a matter of urgency and without the luxury of comprehensive information. [19] The effectiveness of a 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. [20] This wider interpretation of s.24 does not undermine the role of prohibition and improvement notices in encouraging employers to have robust systems in place to demonstrate easily that no risk exists and therefore avoid the disruption of a prohibition notice which remains in force during the appeal process unless suspended by the tribunal. [21]

    The appellant’s arguments, that permitting the tribunal to look beyond the material available to the inspector will create delay and cost, do not change the conclusion on the wider interpretation of s.24. The appeal must be started within 21 days and will thereafter be under the control of the tribunal. [22]

    There are potent considerations in favour of the wider interpretation of s.24. The only means by which a notice can be cancelled under the statutory scheme is an appeal. However, if the appellant’s interpretation were correct a notice could not be dislodged even if the perceived risk of injury never in fact existed. In some cases, an employer might have to carry out unnecessary works. Further, even if, upon receipt of convincing evidence there was no risk the inspector would not seek to enforce the notice, 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 those circumstances that an employer should be exposed to the possibility of criminal proceedings after his appeal is concluded. [23]

    References in square brackets are to paragraphs in the judgment.

    Latest Construction Health and Safety News

    BULK BAG COLLAPSE CAUSED BY UNSAFE STACKING

    Bulk bag collapsed onto workman when struck by fork lift

    Read the rest of this article »

    Posted on 9th December 2019

    INTERLOCKED GUARD NOT WORKING TO ISOLATE POWER

    Two workmen seriously injured when plant started unexpectedly

    Read the rest of this article »

    Posted on 9th December 2019

    STREET FURNITURE RISK TO PUBLIC FINED £1.4M

    Council prosecuted following injury to child playing on hinged bollard

    Read the rest of this article »

    Posted on 9th December 2019

    WORKMEN SUFFER SERIOUS BURNS FROM CABLE STRIKE

    Assessment and system of work failed to appreciate electrical risk

    Read the rest of this article »

    Posted on 29th November 2019

    LADDERS WERE INAPPROPRIATE FOR WORK ON ROOF

    Workman paralysed after falling whilst installing roof ladder

    Read the rest of this article »

    Posted on 28th November 2019

    FIRM FAILED TO MANAGE EXHAUST VENTILATION

    HSE enforcement notices on wood dust and welding fume ignored

    Read the rest of this article »

    Posted on 27th November 2019

    RECALCITRANT DIRECTOR BARRED FROM OFFICE

    Dangerous telehandler used despite earlier fatality and enforcement

    Read the rest of this article »

    Posted on 25th November 2019

    DIRECTOR HID UNSAFE WORKING PRACTICES FROM HSE

    Workers exposed to sprayed paints containing asthma causing isocyantes

    Read the rest of this article »

    Posted on 25th November 2019

    JAIL TERM FOR CONTRACTOR CAUSING GAS RISK

    Roofer sentenced after work caused carbon monoxide release

    Read the rest of this article »

    Posted on 22nd November 2019

    UNSTABLE STAIRCASE COLLAPSE DURING REFURB WORK

    Workman not informed of staircase hazard suffered serious injury

    Read the rest of this article »

    Posted on 22nd November 2019

    UNUSED SEAT BELT WAS “COMMON PRACTICE” ON SITE

    Overturning dumper truck caused death of operators at spoil heap

    Read the rest of this article »

    Posted on 22nd November 2019

    SELECTED NEWS POSTED RECENTLY ON TWITTER

    PP Construction Safety logo and link to home page [1]Links to other construction health and safety related news reports

    Read the rest of this article »

    Posted on 18th November 2019

    HSE LOOK TO LOCAL AUTHORITIES FOR CDM SUPPORT

    Council Inspectors focus on CDM client duties – asbestos, fragility and RCS

    Read the rest of this article »

    Posted on 14th November 2019

    VERBAL WARNING OF DANGER IS NO DEFENCE

    Hand of female worker entangled in modified metal drilling rig

    Read the rest of this article »

    Posted on 14th November 2019

    UNDERGROUND CABLE STRIKE CAUSES 50% BURNS

    Workman seriously injured using hand-held breaker to excavate post holes

    Read the rest of this article »

    Posted on 14th November 2019

    HSE WELDING FUME REVISED GUIDANCE PUBLISHED

    New research evidence on cancer link prompts revision on welding fume

    Read the rest of this article »

    Posted on 14th November 2019

    VIBRATION MANAGEMENT FAILINGS FINED £600,000

    Vital health surveillance, tool replacement and management found wanting

    Read the rest of this article »

    Posted on 14th November 2019

    HSE ENFORCEMENT DATABASE LATEST UPDATE

    hselogo1View current online register of HSE prosecutions and enforcement notices

    Read the rest of this article »

    Posted on 31st October 2019

    DEVELOPER AND DIRECTOR PUT PUBLIC AT RISK

    Demolition undertaken without surveys and effective safety precautions

    Read the rest of this article »

    Posted on 28th October 2019

    BY-PASSING MACHINE INTERLOCK FINED £1.275 MILLION

    Trapped key safety system failed to prevent access to conveyor danger

    Read the rest of this article »

    Posted on 24th October 2019

    HSE LOSES PATIENCE WITH ERRANT CONTRACTOR

    Roofing firm fined £30,000 over failure to manage work at height risks

    Read the rest of this article »

    Posted on 24th October 2019

    TRUSS ERECTION LACKED INTERNAL FALL PROTECTION

    Carpenter fell and injured whilst falling with roof truss

    Read the rest of this article »

    Posted on 24th October 2019

    WORKMAN FELL HEAD FIRST THROUGH ROOFLIGHT

    Fragile roof dangers not assessed and properly controlled

    Read the rest of this article »

    Posted on 24th October 2019

    STRUCTURAL SAFETY BODY LATEST NEWSLETTER

    CROSS publishes reports and expert comment on a range of issues

    Read the rest of this article »

    Posted on 18th October 2019

    HSE RISK REDUCTION THROUGH DESIGN AWARD

    Regulator seeks to promote hazard avoidance and risk minimisation

    Read the rest of this article »

    Posted on 18th October 2019
  • Higher Safety Higher Safety Chipmunk Data Chipmunk Data