The Supreme Court held that an employment tribunal hearing an appeal against a prohibition notice may consider evidence obtained after the notice was served, provided it concerns the risk existing at that time. Later testing of Chevron’s helideck access metalwork could therefore be used to show that corrosion had not in fact created a risk of serious personal injury. The inspector’s appeal was dismissed.
Chevron North Sea Ltd operates an offshore installation in the North Sea. In April 2013, HM Inspector of Health and Safety Mr Conner inspected it with three specialist colleagues. They examined the stairways and stagings giving access to the helideck and concluded that corrosion had rendered them unsafe, creating a risk of serious personal injury from falling through them. Mr Conner served a prohibition notice under section 22 of the Health and Safety at Work etc Act 1974. The notice recorded his opinion that the steel grating and stairway treads were weakened by corrosion in a way that compromised safe evacuation.
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Chevron appealed to an employment tribunal under section 24. In July 2013 it had the relevant metalwork removed and tested. An expert report dated March 2014 found that, apart from one panel damaged during the inspection when an inspector struck it with a fire-fighting axe, all the metalwork passed the British Standard strength test. There was no risk of personnel falling through it. The damage made the safety of that panel impossible to determine, although it might well have passed without the damage.
The tribunal and the courts below
The inspector argued that the tribunal could consider only information that was, or ought reasonably to have been, available when the notice was served. The tribunal examined the case both ways. On the information then available, it would have affirmed the notice in a modified form. Taking the later expert evidence into account, it found that there had not in fact been a risk of serious personal injury and cancelled the notice.
The inspector’s appeal to the First Division of the Inner House failed. The Inner House held that the tribunal had correctly considered the subsequent testing and was entitled to accept it. Because the Court of Appeal had reached a different conclusion in Hague v Rotary Yorkshire Ltd, the inspector obtained leave to appeal to the Supreme Court on the proper approach under section 24.
The statutory context
Under section 22, an inspector who is of the opinion that activities involve a risk of serious personal injury may serve a prohibition notice directing that they must not be carried on unless the matters giving rise to the risk have been remedied. A notice may take effect immediately or after a specified period. An immediate notice cannot be withdrawn by the inspector, so an appeal is the statutory means of challenging it. An appeal does not automatically suspend a prohibition notice, although the tribunal may direct suspension. Under section 33, contravening the notice is a criminal offence, including during an appeal unless suspension has been directed.
The competing interpretations
The parties agreed that a section 24 appeal is not limited to reviewing whether the inspector’s opinion was genuine or reasonable. The tribunal must form its own view of the facts, paying due regard to the inspector’s expertise, and must focus on the risk existing when the notice was served. They disagreed about the material the tribunal could use.
The inspector asked the Supreme Court to adopt the reasoning of Laws LJ in Rotary Yorkshire. Laws LJ considered that the inspector’s question must be answered from facts known or which ought to have been known at the time, particularly because action may be required in an emergency. On that view, the tribunal asks only whether those facts justified the notice, and later information showing that there was no danger should not undermine a notice which it may have been the inspector’s duty to serve.
The Inner House disagreed. Lord Carloway, with whom the other members agreed, said that this approach would prevent a factual appeal even where the information relied on by the inspector could be shown to have been wrong. An appeal on the facts permits the appellant to use competent information available at the tribunal hearing to prove that the factual content of the notice was wrong.
Why later evidence is admissible
Lady Black, with whom Lord Mance, Lord Sumption, Lord Reed and Lord Hodge agreed, held that section 24 does not itself answer the question, so the statutory scheme must be considered as a whole. At the point of service, section 22 makes the inspector’s opinion decisive. On appeal, the challenge is to the notice itself. The tribunal examines the facts on which it was based: here, whether the metalwork was then so weakened by corrosion as to create a risk of serious personal injury.
The inspector’s opinion and reasons may form part of the evidence, but Lady Black saw no good reason to restrict the tribunal to material that was or should have been available to him. Other evidence may help establish what the risk actually was. If it shows that there was no risk at the material time, the notice is modified or cancelled even though the inspector was fully justified in serving it.
An inspector may need to intervene before full evidence is available. Cancellation following later tests does not imply that serving the notice was unreasonable. Unless suspended, a notice remains effective while the appeal is pending.
Lady Black rejected the concern that broader evidence would introduce unacceptable delay and cost. An appeal must be brought within 21 days, its progress is controlled by the tribunal, and the notice’s continuing impact encourages the employer to prepare quickly.
Excluding later evidence could leave a company obliged to undertake work that reliable testing had shown to be unnecessary. Because an inspector could not withdraw an immediate notice, a statutory appeal provided the means to correct that position.
Verdict: The Court unanimously dismissed the inspector’s appeal. The tribunal was entitled to use the later tests to establish the state of the metalwork when the notice was served and to cancel the notice.
Source: HM Inspector of Health and Safety v Chevron North Sea Limited [2018] UKSC 7
