HSE notice case opens “possibility of more appeals”
The Supreme Court has ruled against the Health and Safety Executive in a case involving global oil firm, Chevron, and which could have consequences for further appeals.
The oil firm successfully defended an appeal against a prohibition notice under section 24 of the Health and Safety at Work etc Act 1974. This was because evidence could be taken into account which was not known – nor could reasonably be known – to the Health and Safety Executive inspector at the time he issued the notice.
The case referred to a notice issued by the HSE inspector to Chevron on its offshore installation in the North Sea.
In April 2013, the structure was inspected, including a helipad, which was deemed a vital part of the structure as it acted as the main source of access to the site.
But the inspector deemed the stairways from the structure to be unsafe due to corrosion – and said there was a risk of serious personal injury from falling through the stairs. As a result, he served a prohibition notice under section 22 of the Health and Safety at Work etc Act 1974 (the Act).
Subsequently, Chevron appealed to the Employment Tribunal against the prohibition notice under section 24 of the Act. At the appeal, the global oil firm relied upon a report from an expert, it had commissioned eleven months after the inspection, which indicated there was no risk as the stairways conformed to the relevant British Standard. On this basis, the tribunal was allowed the appeal.
Clarity for appeal
The law firm defending Chevron, Clyde and Co claimed conflicting appellate decisions in England and Scotland meant that previously the scope of a section 24 appeal was uncertain. This case provides important clarity, according to the firm.
It said the wording of the statute meant it is not immediately clear whether the tribunal is only entitled to have regard to the facts which were known, or ought reasonably to have been known, to the inspector at the time he served the notice.
The law firm stated: “This was the issue which the Supreme Court had to determine. It confirmed that employers should be reassured that they no longer face the prospect of a black mark against their name in circumstances where they can demonstrate that, as a matter of fact, a prohibition notice should not have been issued in the first place.”
David Reynolds, partner at Clyde & Co, said: “This is an important development of law in the UK to determine what had previously been differing approaches by the English and Scottish courts to an appeal under the Health and Safety at Work Act 1974.”
The Judgment from the Supreme Court therefore indicates of greater scope for challenging notices than has been the case since the decision of the Hague v Rotary Yorkshire.
As a result, firms should now consider whether evidence is available, or could be obtained, which was not known to the inspector at the time the notice was served.
Legal experts have now predicted appeals could become a ‘battleground’ between experts, and that HSE inspectors may now serve requests for numerous documents under Section 20 to increase the wealth of evidence when considering serving a notice.
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