BT Fleet Ltd v McKenna

An improvement notice must enable the recipient to understand what is wrong, why it is wrong and what is required to remedy it. The notice must be clear and easily understood. Although directions about remedial measures are optional, directions included in the notice form part of it and may invalidate the notice if confusing or misleading. An appellate tribunal should cancel a fatally defective notice rather than amend it to create a valid notice. Drafting latitude does not permit a notice to convey a requirement which the inspector did not intend, or which the recipient could not fairly identify.

BT Fleet Ltd appealed under section 11 of the Tribunals and Inquiries Act 2004 against the London East Employment Tribunal’s decision of 29 July 2004. The Tribunal had affirmed an improvement notice issued under section 21 of the Health and Safety at Work etc. Act 1974 concerning manual handling of wheels and tyres.

The notice alleged breaches of section 2(1) of the 1974 Act and regulation 4(1)(a) of the Manual Handling Operations Regulations 1992. It required mechanical lifting aids or any other equally effective means of compliance. The Tribunal amended the notice to refer expressly to adequate training and supervision. The central issue was whether the notice was sufficiently clear and whether the Tribunal could cure its defects by amendment.

1. The appeal was allowed. The Employment Tribunal’s order affirming the improvement notice was quashed and an order cancelling the notice was substituted.

2. Following The Borough of Bexley v Gardner Merchant Plc (unreported, 17 March 1993), an improvement notice must enable the recipient to know what is wrong and why it is wrong. It must be clear and easily understood. That requirement applies to notices under section 21 of the Health and Safety at Work etc. Act 1974 as well as to notices under the Food Safety Act 1990.

3. The notice and accompanying letter, read together, conveyed that BT Fleet had to stop manually lifting wheels onto the tyre-changing machine and replace that operation with mechanical handling. They did not clearly convey that adequate training and supervision could constitute an alternative remedy.

4. Although section 23(2) makes directions about remedial measures optional, once such directions are included they form part of the notice. Confusing directions may therefore make the notice invalid. The Tribunal should not have amended the notice when it became clear that the inspector was not insisting on the mechanical solution stated in it.

5. Some latitude is appropriate in drafting enforcement notices. They need not be construed with the strictness of a conveyancer, and minor inaccuracies will not necessarily invalidate them. But the notice must fairly state what the recipient has done wrong and what must be done to remedy it. This notice failed that test.

• London East Employment Tribunal: on 29 July 2004 affirmed the improvement notice and amended its schedule.
• High Court (Administrative Court): appeal allowed; the Tribunal’s order was quashed and the notice cancelled.