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Challenging the HSE: New case shows how to clear your name

Malcolm Gunnyeon

Companies that dispute an inspector’s decision now have a route to challenge prohibition notices, explains Malcolm Gunnyeon.

Construction firms will be only too aware of the extensive powers available to Health and Safety Executive inspectors – and difficulties of disputing any decisions they get wrong.

However, a recent Supreme Court ruling has provided some welcome guidance for companies wanting to challenge them.

Following an inspection in 2013, Chevron North Sea was served with a prohibition notice after an HSE inspector formed the view that the stairs and platforms leading to an oil rig’s helideck had corroded and weakened, to the point that they were unsafe to use.

Although crucial to protecting the safety of workers – particularly in hazardous environments such as building sites – prohibition and improvement notices issued under sections 22 and 23 of the 1974 Health and Safety Act can have a harsh impact on those who may not have broken any rules.

As in Chevron’s case, these notices can lead to enforced shutdowns of operations that can be costly for any business, and the notices stay on the HSE’s database for five years as a very public black mark against the firms involved. 

However, Chevron was convinced that the steelwork was in a safe condition, subsequently lodging an appeal with the Employment Tribunal and sending a sample of the steelwork away for expert analysis. This eventually returned the conclusion that all of the relevant steelwork met the requisite British Standard and there was no risk of a person falling through it.

Admissable evidence?

Understandably, Chevron sought to rely on this expert evidence in the appeal. Although that may seem like a straightforward proposition, the question of whether the evidence was admissible had to be taken all the way to the Supreme Court.

Both parties agreed that, in such an appeal, the tribunal is required to form its own view of the facts and to focus on any risk that existed at the time that the relevant notice was served. However, the parties disagreed on the question of what material the tribunal was entitled to take into account as part of that exercise. Could it consider information not available to the inspector at the time?

Eventually, the Supreme Court determined that the tribunal could “see no good reason for confining [its] consideration to the material that was, or should have been, available to the inspector. It must […] be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was.”

“The court rejected the suggestion that allowing additional information to be considered on appeal would somehow reduce the effectiveness of prohibition notices”

In other words, the role of the tribunal is to determine, as a matter of fact, whether any risk to safety actually existed at the time that the notice in question was served. That is crucially different from the terms of section 22 of the 1974 Act, which permits an inspector to serve a prohibition notice if they are “of the opinion” that there is “a risk of serious personal injury”.

Supreme Court consequences

The court wanted to make clear that there should be no criticism of an inspector if an appeal reaches a different view about the existence of a safety risk, recognising that these decisions are often taken as a matter of urgency, are always a matter of opinion and are taken by inspectors in the utmost good faith.

Equally, the court rejected the suggestion that allowing additional information to be considered on appeal would somehow reduce the effectiveness of prohibition notices as a tool to protect employee safety. After all, it is only if the additional evidence demonstrates that there was no risk to safety that an appeal will succeed.

What is clear from the court’s decision is that, while these notices will remain an effective tool against companies that do not sufficiently prioritise health and safety, businesses that feel wronged by an inspector’s judgement now have a route to clear their name and protect their revenue stream.

This is particularly useful for sectors such as construction which, due to the nature of their work, naturally attract the most attention from the HSE.

Malcolm Gunnyeon is a partner in Dentons’ dispute resolution team

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