19/02/2018
HM Inspector of Health and Safety v Chevron North Sea Limited (Scotland)
The much-anticipated Supreme Court judgment of HM Inspector of Health and Safety v Chevron North Sea Limited[1] was released last week. The Health and Safety Executive’s (HSE) appeal was dismissed, with the court ruling that an employment tribunal, when considering an appeal under section 24 of the HSWA 1974,
“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.”
This decision, relevant to appeals against improvement notices as well as prohibition notices, will be welcome to dutyholders. As the court recognised, the service of a notice has serious implications for a business.
The fact that a tribunal can now consider all relevant evidence, not just the evidence considered by the inspector when serving the notice, means that there is far greater scope for appealing enforcement notices. Therefore the ruling is likely to lead to an increase in appeals
Background to the case
Chevron North Sea Ltd operates an offshore installation in the North Sea. In 2013, the installation was inspected by the HSE. The inspectors’ attention was drawn to the stairways and stagings providing access to a helideck. They declared that corrosion had rendered them unsafe and there was a risk of serious personal injury from falling through them.
A Prohibition Notice was issued to Chevron under section 22 of the HSWA 1974. Chevron appealed against the prohibition notice to an employment tribunal under section 24 of the 1974 Act. After launching the appeal, Chevron sent the metalwork from the installation which concerned the HSE inspectors to be tested. Apart from a single panel which had been damaged by one of the HSE inspectors, all the metalwork passed the British Standard strength test, and there was no risk of personnel being injured by falling through it.
Chevron sought to rely upon the expert report as part of their appeal to the tribunal. The inspector opposed that on the basis that the tribunal must focus on the information that was available, or ought reasonably to have been available, to an inspector at the time of the service of the notice. The results of the expert testing could not have been available to the inspector when he decided to serve the Penalty Notice; therefore, he argued, the tribunal should not take the tests into consideration when deciding on the appeal.
Both the tribunal and the First Division of the Inner House held the tribunal was entitled to review the new information provided after an appeal under section 24 had been lodged.
HSE appealed to the Supreme Court because the Court of Appeal in Hague (One of Her Majesty’s Inspector of Health and Safety) v Rotary Yorkshire Ltd[2] had reached a different conclusion. The issues before the Court was 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 (the approach in England and Wales) or whether it can take into account additional evidence which has since become available (the approach in Scotland)
The Supreme Court in a unanimous decision agreed the Scottish approach was the correct one. The Court said that the appeal process was a necessary forum to determine
“whether the circumstances that concerned the inspector did in fact give rise to a relevant risk”
Why appeal an improvement or prohibition notice?
The Supreme Court noted the detrimental impact of the service of a prohibition notice on a business:
“The service of a prohibition notice on a business has the potential to do considerable harm to it. Having to cease the activity in question will inevitably result in disruption and is likely also to have a financial cost, but there may be other serious consequences as well, including significant damage to the business’s reputation and its ability to tender for contracts. This is reflected in the fact that, according to the [HSE], a very common motivation for an appeal against a notice is to avoid registration of the notice on the Health and Safety Executive’s public database.”
Except for ceasing the activity, the same is true for an improvement notice. In addition there is also the impact that relevant notices may have on a company if convicted of a health and safety offence in the future. Under the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences – Definitive Guideline, which has resulted in a significant increase in the fines imposed, one of the aggravating factors listed is poor health and safety record. It is common practice for HSE to bring to the court’s attention notices that have been served on the defendant company during the sentencing hearing.
If a company wishes to appeal there are strict time limits – an appeal must be submitted within 21 days of the service of the notice. It is therefore important to seek legal advice promptly.
Fee For Intervention (FFI)
FFI is HSE’s cost’s recovery scheme. If an inspector is of the opinion that a business has breached health and safety legislation then he/she will send a notification of contravention which enables the inspector to charge for his/her time at a rate of £129 per hour. There is a dispute process for challenging FFI invoices, which like appeals against notices have strict time limits.
Whilst under the dispute process HSE states it will only disclose
“all the relevant information that was available to the inspector on which their decision was based, and why a contravention was considered to be a material breach”
It is clear following the decision in HM Inspector of Health and Safety v Chevron North Sea Limited the disputes panel will be able to consider all relevant evidence as to whether there was in fact a material breach as alleged by the inspector. .
Fisher Scoggins Waters is a London based law firm who are experts in construction, manufacturing, and engineering law. We are experienced in appealing enforcement notices. We also acted for OCS in its successful judicial review of the FFI disputes process which resulted in a new process being implemented by HSE on 1 September 2017. If you have any questions about health and safety matters or require an emergency response to an incident, please phone us on 0207 993 6960.