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Supreme Court backs Chevron over use of new evidence in appeal over HSE prohibition notice

Tribunals are entitled to take into account additional evidence that was not available to the health and safety inspector when considering an appeal against a prohibition notice, the UK's highest court has confirmed.08 Feb 2018

The unanimous decision, which confirmed the position of the Scottish courts on the point, will provide "welcome clarity" to those subject to UK health and safety law, according to health and safety expert Katherine Metcalfe of Pinsent Masons, the law firm behind Out-Law.com. The decision of the Inner House of the Court of Session backing offshore platform operator Chevron was at odds with the position taken by the English courts, she said.

"Many prohibition notice appeals in England, Wales and Scotland have been on hold, some for significant periods of time, awaiting the Supreme Court's judgment," Metcalfe said. "Duty holders, their legal representatives and the Health and Safety Executive (HSE) will now need to review the prospects of success in each case in light of this judgment."

"In general terms, the judgment is good news for duty holders. The departure from the English Court of Appeal's reasoning in the Rotary Yorkshire case restores a remedy where an inspector, in good faith, serves a prohibition notice on the basis of information which is incomplete or simply wrong. The Supreme Court recognises the very serious financial, operational and reputational impact that a prohibition notice can have on an organisation," she said.

However, some questions remained unresolved following the appeal, particularly around who should have to bear the cost of a successful appeal and the scope of the appeal process associated with the HSE's fee for intervention cost recovery scheme, she said.

The case involved an appeal by Chevron against a prohibition notice served on it by an HSE inspector in April 2013 to the employment tribunal in Aberdeen. In March 2015, the employment tribunal cancelled the notice on the grounds that tests later carried out by Chevron on a stairwell closed off by the inspector had shown that there was no risk of serious personal injury from it.

HSE appealed to the Inner House of the Court of Session, Scotland's appeal court, arguing that the tribunal should not have been entitled to take into account information that was not available to its inspector when he came to his decision. The court backed Chevron and the tribunal, ruling that there was "no sound basis for restricting appeals [against HSE notices] to what would in essence be a form of judicial review of the inspector's opinion".

A panel of five Supreme Court judges, led by Lady Black, agreed. The judge said that an appeal against a prohibition notice was "not [an appeal] against the inspector's opinion but against the notice itself". Although the inspector's opinion as to the existence of a risk of serious personal injury was "relevant as part of the evidence shedding light on whether the risk existed", it could not be the only evidence on which the tribunal was permitted to rely.

"If, as in this case, the evidence shows that there was no risk at the material time, then, notwithstanding that the inspector was fully justified in serving the notice, it will be modified or cancelled as the situation requires," she said.

"The effectiveness of a prohibition notice is in no way reduced by an appeal process which enables the realities of the situation to be examined by a tribunal with the benefit of additional information. Once served, the notice provides immediate protection, reinforced by the existence of criminal sanctions … Furthermore, there does not seem to me to be any reason to suppose that [this interpretation] would undermine the role that prohibition and improvement notices play in encouraging employers to have robust systems in place with a view to demonstrating easily, when an inspection takes place, that no risk exists," she said.

The judge noted that the prohibition notice would remain in force during the appeal process unless suspended by the tribunal, and that acting in breach of a prohibition notice before it was formally cancelled would remain a criminal offence.

The court acknowledged that the service of a prohibition notice on a business "has the potential to do considerable harm to it", whether in the form of disruption, financial costs and reputational damage. Its view was that this gave businesses "plenty of encouragement to do what they can to avoid getting into such a situation in the first place", as well as an incentive to "marshal [its appeal] speedily so as to free himself from the notice as quickly as possible".

What it did not do was address the question of who should bear the cost of an appeal which was ultimately successful on the basis of information that was not available to the inspector at the time, said Katherine Metcalfe.  It will be for the employment tribunal to consider this on a case by case basis.

"Should the HSE, as a public sector organisation, pick up the cost where there is no criticism of the decision the inspector made on the basis of the information available at the time?" she said. "On the other hand, why should a duty holder bear the cost of appealing a notice served in a situation where they can demonstrate that there was no risk? Early communication with HSE about 'new information' which casts doubt upon the inspector's opinion may well strengthen the duty holder's position when it comes to seeking costs."

"There are also potential implications for the new process implemented by HSE to deal with disputed invoices raised under its fee for intervention scheme, which allows HSE to recover the costs of inspection, investigation and enforcement action where there has been a material breach of health and safety law. Where it is argued that there has been no material breach, HSE will only provide the disputes panel with the information available to the inspector at the point at which the notice of contravention was issued. That approach must now also be open to challenge," she said.