A judgement handed down by the UK Supreme Court has finally clarified what evidence employment tribunals are entitled to consider when dealing with appeals against enforcement notices issued by the Health and Safety Executive.
The Supreme Court confirmed the decisions of the Employment Tribunal in Aberdeen and the Inner House of the Court of Session that when considering an appeal against an enforcement notice issued by the HSE, a tribunal is entitled to take into account all available relevant evidence, including information that only becomes available after the notice has been served.
In 2013, Chevron North Sea Limited appealed against a prohibition notice issued by the Health and Safety Executive. In the course of a routine inspection of a North Sea offshore installation operated by Chevron in April 2013, HSE Inspectors formed an opinion that corrosion on steel stairways on the installation made the use of them unsafe and there was a risk of serious personal injury to people falling through the stairways. Against that background, the prohibition notice was issued.
Chevron appealed against the prohibition notice and had tests carried out on samples of what were considered to the most corroded parts of the stairways. The sample tested by the HSE Inspectors had been destroyed and was could not be tested but all other samples met the British Standard for floor surfaces and walkways and there was no risk of serious personal injury to anyone using the stairways.
The Employment Tribunal in Aberdeen heard the appeal and considered that they ought to take account of the test results in order to “examine and determine” the level of risk that actually existed at the time the notice was issued and they cancelled the prohibition notice. The HSE appealed the decision of the Employment Tribunal, arguing that the tribunal should have restricted itself to considering information or evidence which was actually available, or ought to have been available, to the Inspectors at the time the notice was issued.
The Court of Session upheld the Employment Tribunal’s approach and decision, saying that whilst is undoubtedly correct that an inspector can only form a view based on their perception of facts and assessment or risk at the time they issue a notice, when considering whether a serious risk of personal injury existed at that time, an employment tribunal can take into account evidence that only emerges at a later date.
The Supreme Court noted the important difference between the position an Inspector will be in at the point of issuing a notice and a tribunal hearing an appeal. Whilst the issue for an Inspector considering whether to issue a prohibition notice is are of they opinion that there is a risk of serious personal injury, the tribunal must focus on whether at the time the notice was issued there was in fact a risk of serious personal injury.
The decision gives clarity to both the HSE and to companies. On the one hand Inspectors, who often have to make urgent decisions under significant pressure on the basis of limited information will be able to continue to do so in the knowledge that if no risk to the safety of people exists, a tribunal will be able to deal with that at appeal. On the other, where it becomes apparent after a notice has been served that the was in fact no risk to the safety of people from a company’s operations, companies faced with operational disruption, financial implications, reputational damage and possible exclusion from tendering for work, will be able to present a tribunal with relevant information in support of their position.