Out-Law News 3 min. read

UK courts adopt contrasting approaches to appeals against HSE inspection notices

Tribunals are entitled to take into account information that was not available to a health and safety inspector at the time that a notice was issued when hearing an appeal against that notice, the Scottish appeal court has ruled.

The judgment, which was given by Scotland's most senior judge Lord Carloway and supported by two fellow judges, is significant, as it was handed down 10 days after the High Court in London took the opposite approach, according to litigation law expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com.

"Courts on opposite sides of Hadrian's Wall often go to great lengths to avoid disagreeing over the interpretation of a UK statute, if for no other reason than it is inconvenient for businesses operating throughout the UK to have to deal with a change of rules at the border," he said.

"At issue was the test to be applied on appeal of a notice issued by an HSE inspector, to a tribunal or beyond. Was it a form of judicial review, focusing only on the opinion of the inspector and what he knew or should have known; or was the appeal wider, allowing the appellant to show that in fact the risk  did not exist whatever the inspector thought? The latter was 'eminently sensible', according to the Scottish judges - any other result could lead to injustice if it emerged later that in fact there was not a serious risk," he said.

Energy company Chevron, which operates a number of offshore oil and gas installations in the North Sea, had appealed a prohibition notice served on it by a Health and Safety Executive (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 the 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

Giving the judgment of the court, Lord Carloway referred back to a decision taken by the Court of Appeal in England and Wales last year. He said that the decision, in which the court held that a tribunal was not entitled to take into account "later" events "of which the inspector could have had no knowledge at the time of the notice", was a "troubling" one. This decision, against Rotary Yorkshire Ltd, was relied on by the High Court last month in the Wilcox case, which turned on similar facts.

Lord Carloway said that although it was "undoubtedly correct" that an HSE inspector could only form a view "based on his perception of the facts and his assessment of risk", that did not restrict the evidence that could be relied upon by the company or individual subject to the notice when appealing on the facts.

"The fundamental problem with [this approach] is that it prohibits an appeal on the facts in a situation where it can be demonstrated that the facts or information upon which the inspector proceeded were wrong," he said. "That is the essence or purpose of many appeals on the facts. In short, there is 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."

"It follows that ... the tribunal were correct in having regard to [the later tests]. It was then for the tribunal to reach their own view upon all the evidence. It is not possible to discern any error of law in the tribunal's assessment ... that at the time of the notice 'the condition of the gratings and stairs, albeit plainly affected by considerable corrosion, did not in fact involve a risk of serious personal injury'," he said.

The judge said that it was important to bear in mind the "profound effect" that a prohibition notice could have on the business, whether on its reputation or ability to tender up to the possibility of closure. He said that it would be "strange indeed" if the subject of the notice was unable to appeal the notice "based upon the simple contention that, whatever the inspector thought at the time based on the information available to him, it was now known, based on more complete or additional information, perhaps even accepted on all sides, that the risk founded upon did not in fact exist".

Health and safety law expert Laura Cameron of Pinsent Masons said that this emphasis on the part of the judges was "a welcome recognition at the highest level of the significance of health and safety issues in the current environment".

"It was also clear that the court roundly rejected any suggestion that their decision would weaken enforcement," Craig Connal added.

"They also indicated – and, arguably, this will be welcome to both sides – that their line would reduce the number of cases in which there was any need to debate the 'propriety' of the inspector's actions. An inspector might make a perfectly reasonable call under time pressure and on the information available, but that might turn out, with later investigation, to be wrong. That was not a criticism of the inspector," he said.

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