Organisations contesting enforcement notices will be able to rely on information that was not available to the inspector who served the notice. A Supreme Court judgment in the case of HM Inspector of Health and Safety v Chevron North Sea Ltd will allow dutyholders appealing prohibition or improvement notices to commission research and use it to argue a notice was not justified.
Oil exploration company Chevron was served a prohibition notice in 2013 for corroded stairs and platform leading to a helideck on one of its offshore platforms, which a Health and Safety Executive (HSE) inspector believed rendered the stairway unsafe.
Appealing successfully against the notice at an employment tribunal, Chevron relied on an expert inspection and test of the stairway it had commissioned after receiving the notice. The expert’s report showed the metalwork passed British Standard strength test and was fit for use.
The HSE appealed the decision on the grounds that in a previous case, Hague v Rotary Yorkshire Ltd (2014), the Court of Appeal held that courts should not use hindsight in judging whether a notice was justified.
The latest judgment the Supreme Court ruled that a tribunal is entitled to take into account all available evidence, not just that that was available to the inspector when they decided to serve the notice.
Delivering the judgment on behalf of the court, Lady Black noted that inspectors should still serve notices if they believe it is necessary to ensure the safety of workers or others, since they will not always be able to wait for full investigation of the circumstances. She also noted that if a tribunal cancels a notice there is no implied criticism of the inspector. The appeal is an appeal against a notice, not against the inspector’s opinion.
“The Supreme Court has cleared up the confusion about what evidence tribunals can consider in hearing appeals against notices,” said Ian Wright, barrister at Five Paper chambers, who appeared as junior counsel at the Supreme Court hearing.