Appealing a Prohibition Notice: All evidence is good evidence
The Supreme Court has confirmed that employment tribunals are entitled to consider all evidence relevant to the state of affairs which existed when a prohibition notice was served, whether or not it was available to the inspector at the time. This decision directly contradicts the Court of Appeal’s ruling in HM Inspector of Health and Safety v Rotary Yorkshire Limited that the tribunal should only consider information that would, or ought to, have been available to the inspector when the notice was issued. Of most significance, a tribunal is now entitled to consider expert evidence obtained for the purpose of challenging the notice.
The precedent-setting decision follows an appeal in the case of HM Inspector of Health and Safety v Chevron North Sea Limited which arose following the service of a prohibition notice during a routine inspection of their North Sea Oil platform, Chevron Captain. The HSE inspector initially formed the opinion that the stairways providing access to the helideck were unsafe and, due to corrosion, presented a risk of serious personal injury due to someone falling through them. In response to the notice, Chevron obtained expert evidence confirming that all the metalwork passed the British Standard strength test, meaning there was no risk of anyone falling through the stairs.
The case initially came before the Aberdeen Employment Tribunal who allowed the appeal based on Chevron’s expert evidence. The inspector then appealed that decision to the Scottish Inner House of the Court of Session on the grounds that the tribunal were only entitled to consider information available to him at the time the notice was issued.
The Inner House dismissed the inspector’s appeal, holding that the tribunal was entitled to consider the subsequent testing undertaken by Chevron, therefore correctly concluding that there was no risk of serious personal injury at the time the notice was issued. However, given this decision conflicted with the English Court of Appeal’s previous ruling in Rotary Yorkshire Limited, leave was given for the inspector to take his case to the Supreme Court.
In its judgment, the Supreme Court indicated the important factor when issuing a prohibition notice was whether the inspector considered there to be a risk of serious personal injury. Importantly however, it went on to state there should be a shift in focus for an appeal, with all available and relevant facts being taken into account before a decision is made. If, as in this case, such consideration indicates that no risk of serious personal injury existed, then the notice should be cancelled.
Whilst the inspector’s opinion, and the information upon which that opinion is based, will be relevant in any appeal proceedings, the Supreme Court could see no good reason for refusing the tribunal’s right to consider further evidence, especially if it illustrates there was no risk at the time the notice was issued.
It was indicated that the cancellation of a notice should not be seen as criticism of an inspector, given the decision to issue one is often taken as a matter of urgency and precaution in the absence of all known facts. However, when evidence comes to light that the inspector’s opinion is wrong, there should be no reluctance or impediment to rightfully cancelling such a notice.