18/10/2016
Last year the Court of Appeal clarified the power of HSE inspectors to issue enforcement notices and the rights of a receiving organisation to issue a challenge against them in the Employment Tribunal.
Hague v Rotary Yorkshire Ltd (2015)
Until the 2015 case of Hague v Rotary Yorkshire Ltd, the law surrounding the issuing and appeal of an Enforcement Notice had not been considered by the Court of Appeal.
The background to the case is as follows:
Following an unannounced inspection to a construction site in Leeds on which Rotary Yorkshire Ltd (RYL) was installing mechanical and electrical plant, a Prohibition Notice was issued by an HSE inspector after she found exposed conductors at the rear of the switchboard. The Notice was issued because on the day of the inspection, the organisation’s owners were unable to prove that the conductors were dead.
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 High Court which quashed the 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 publically 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 High Court made its decision based on previous case law that established that the Employment Tribunal is entitled to consider certain information which was not available to the inspector at the time. In Railtrack v Smallwood (2001), regarding a prohibition notice served on the railway signal involved in causing the 1999 Ladbroke Grove disaster, the High Court was of the opinion that:
“[the] tribunal was not limited to reviewing the genuineness and / or reasonableness of the inspector’s opinions. It was required to form its own view, paying due regard to the inspector’s expertise.”
However, this view was not part of the ruling of that case and was not binding. A similar decision was not formally adopted until Chilcott v Thermal Transfer Ltd (2010), where the High Court confirmed:
“[The Tribunal] is to identify on the evidence before it, which is not restricted to matters which were in existence before a particular date, what the situation was as that particular date…[and not] close its eyes to matters that occurred after that time.”
The Court ruled that the Tribunal’s decision should be upheld as it correctly took into account the subsequent results from the tests conducted on the wiring by an authorised person.
The Court Of Appeal’s Decision
The Court of Appeal found in favour of the inspector. In its judgment, three points were made clear:
1. An HSE inspector had to make their decision whether or not to issue a Notice based on the risk of serious personal injury on the facts available at the time of inspection;
2. Any commercial disadvantage that may be incurred following the issue of a Notice should not be a consideration of the Tribunal when deciding whether or not to uphold an appeal against a Notice; and
3. 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 exercise a lesser power and leave the area undisturbed, an inspector has the right to issue a notice if he or she thinks it is necessary.
Conclusion
The issue of appealing enforcement notices, along with Fee For Intervention (FFI) invoices is one companies must consider carefully. It must always be borne in mind that if an Enforcement Notice is not appealed, then the validity of that Notice cannot be challenged in any subsequent prosecution for breach of the Notice. Similarly, if an FFI invoice is paid without complaint, you are effectively agreeing that your organisation committed a ‘material breach’ of health and safety regulations because a FFI invoice can only be issued if a ‘material breach’ is found by an inspector.
Most cases involving the appeal of a Notice, turn on their facts; therefore, it is imperative that companies seek legal advice early on. The time limit pertaining to appeals must also be kept in mind. An appeal must be made within 21 days of the service of the Notice (i.e. by the twentieth day after service). In the case of London Borough of Wandsworth v Covent Garden Market Authority EWHC 1245 it was held that the time limit can only be extended by the Tribunal if it was not reasonably feasible to file the appeal in time. Therefore, the time limit will be strictly applied.
Fisher Scoggins Waters are a London based law firm who specialise in construction, manufacturing and engineering law. If you would like more information about challenging an Enforcement Notice or the FFI scheme or wish to challenge an invoice, please phone us on 0207 993 6960.