The Rights and Wrongs Of Prohibition Notices

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15 June 2018

The Supreme Court has recently decided that where a Prohibition Notice is served and subsequently found to be unfounded, the Notice can be rescinded or modified but the issuing inspector should not be sanctioned.

Fundamentally, this is on the grounds that any H&S inspector might reasonably act in an 'emergency' situation without the benefit of subsequent testing.

The case revolves around  the HM Inspector of Health and Safety (Appellant) v Chevron North Sea Limited.

The Respondent operates an offshore installation in the North Sea. In April 2013, the installation was inspected by Her Majesty’s Inspectors of Health and Safety. The inspectors formed the view corrosion had rendered the stairways and stagings to the helideck unsafe and served a prohibition notice on the Respondent (under section 22 of the Health and Safety at Work Act 1974).

Appeal

In May 2013, the Respondent appealed against the prohibition notice to an employment tribunal (under section 24 of the 1974 Act).

In July 2013, the Respondent arranged for the metalwork which had been of concern to the inspector to be removed from the installation and tested. The results of the testing showed that all the metalwork passed the British Standard strength test with the exception of a panel

which had been damaged during the inspection and could not be tested reliably.

There was no risk of personnel being injured by falling through it.

Chevron won the tribunal and the inspectors appealed.

The Supreme Court unanimously dismissed the appeal on the basis the tribunal 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.

However, the Judges in the case also recognised it is vital for inspectors to be able to take prompt and effective action. The decision included the wording 'a prohibition notice is a powerful tool in the inspector’s hands. It not only allows an inspector to step in when he (sic)  is of the opinion that a particular activity will involve a risk of serious personal injury, it also encourages employers to have good systems in place to improve safety'.

The decision continued, 'however, the service of a prohibition notice on a business has the potential to do financial and reputational harm to it. An appeal against an inspector’s notice is not against the inspector’s opinion but against the notice itself'.

'It is no criticism of the inspector when new material leads to a different conclusion about risk from the one he reached. His decision is often taken as a matter of urgency and without the luxury of comprehensive information.

'The effectiveness of a 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.

'This wider interpretation of section 24 does not undermine the role of prohibition and improvement notices in encouraging employers to have robust systems in place to demonstrate easily that no risk exists and therefore avoid the disruption of a prohibition notice which remains in force during the appeal process unless suspended by the tribunal.

'The appellant’s arguments, that permitting the tribunal to look beyond the material available to the

inspector will create delay and cost, do not change the conclusion on the wider interpretation of section 24'.

More

'There are potent considerations in favour of the wider interpretation of  section 24. The only means by which a notice can be cancelled under the statutory scheme is an appeal. However, if the appellant’s interpretation were correct a notice could not be dislodged even if the perceived risk of injury never in fact existed. In some cases, an employer might have to carry out unnecessary works.

'Further, even if, upon receipt of convincing evidence there was no risk the inspector would not seek to enforce the notice, the notice would still have the capacity to damage the reputation of the employer and his ability to do business. Furthermore, it cannot be right in those circumstances that an employer should be exposed to the possibility of criminal proceedings after his appeal is concluded'.

Picture: For illustration only -  Chevron North Sea facility but not necessarily the one served a prohibition notice.

Article written by Brian Shillibeer | Published 15 June 2018

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