Evidence gathered post HSE prohibition notice served can be used in appeal.

The Supreme Court ruling sets a UK-wide Precedent.  A landmark decision means that evidence gathered after a HSE prohibition notice is served can be considered in an appeal.

Elizabeth Sinclair Director at Epica Health & Safety agrees with the recent summary provided by Weightmans’ partner Seonaid Busby about the Supreme Court ruling setting a UK-wide Precedent.  She argues that by being able to gather evidence after a HSE Prohibition notice is served will give organisations more power to challenge unfair notices and protect against possible reputational damage.

The Supreme Court recently settled a long-running legal dispute between the HSE and Chevron North Sea, an Aberdeen oil and gas company.

The court ruled in favour of Chevron, finding that evidence collected by the firm to challenge a prohibition notice after an inspection could be considered as a part of its appeal. The decision confirms employment tribunals (where appeals against HSE notices are heard) are not limited to considering material known to an inspector at the time a health and safety notice is served.

The dispute began when, during a routine health and safety inspection on a Chevron offshore installation, an HSE inspector concluded that visible corrosion on the stairways and gratings leading to the site’s helideck made them unsafe, meaning there was potentially a risk of serious personal injury. Chevron was served with a prohibition notice under the Health and Safety at Work Act 1974, forcing it to stop using the walkway until the issue had been resolved.

It then arranged for testing of the metalwork, which found it met the relevant British Standard requirements. On this basis, Chevron appealed to the employment tribunal. The tribunal took the new evidence into account and concluded there had been no risk to serious personal injury when the notice was issued and cancelled it.

The HSE disagreed with the ruling and appealed to Scotland’s Inner House of the Court of Session. It argued the judgement would undermine the effectiveness of prohibition notices and, critically, limit its ability to encourage organisations to have systems in place that demonstrate a workplace is safe for employees. Its argument relied on an English Court of Appeal decision, Rotary Yorkshire vs Hague, that stated employment tribunals should only consider evidence available to the inspector at the time a prohibition notice is served.

The Scottish court unanimously refused the HSE’s appeal, creating a situation where employment tribunals on opposing sides of the border had conflicting legal precedents to refer to when deciding on the legitimacy of a health and safety notice.

The Supreme Court’s decision on this matter resolves the inconsistency by effectively reversing the English Court of Appeal’s Rotary Yorkshire decision, thereby delivering certainty and consistency to employers across the UK. But perhaps more importantly, by ruling in favour of Chevron, the Supreme Court has recognised that the service of such notices can have significant negative implications for organisations.

Health and safety notices can cause the halting of a specific activity, or require work to be carried out to address the issue thought to be causing a risk to health and safety. This can result in in potentially lengthy and financially damaging disruption for an organisation. For the public sector, this could stop the delivery of essential services and put pressure on already stretched budgets. For the private sector, incorrectly issued notices may cause serious reputational damage, which can affect an organisation’s ability to secure new contracts and threaten existing commercial relationships.

The Supreme Court ruling sets a UK-wide precedent which will ensure a consistent, common-sense approach to appeals by allowing new evidence to be considered during the appeal process, thereby empowering organisations both north and south of the border to challenge unfair, or misinformed notices. Because of this, and the broader scope of evidence that can now be considered by employment tribunals in England, we are likely to see the number of appeals against health and safety notices rise.

That said, it is important to note the ruling doesn’t mean organisations should be any less vigilant when it comes to health and safety. The Supreme Court’s judgement commended inspectors and their work to keep organisations safe based on the evidence in front of them. In delivering its verdict, the Court also stressed the value of prohibition and improvement notices and the importance of inspectors’ assessments, which are designed to promote health and safety in the workplace. This ruling does not put an end to this position; it simply ensures organisations are better placed to dispute notices if they are factually incorrect.