BT Fleet Ltd v McKenna

The court considered the validity of an improvement notice served under section 21 of the Health and Safety at Work etc. Act 1974 and whether the notice complied with the statutory requirement to state the inspector's opinion, specify the provision relied upon and give particulars of the reasons. The notice named breaches of section 2(1) of the 1974 Act and regulation 4(1)(a) of the Manual Handling Operations Regulations 1992 and the schedule to the notice specified mechanical lifting aids as the required remedy or "any other equally effective means".

The court held that a lawful improvement notice must allow the recipient to know what is wrong, why it is wrong and how the inspector intended that it be remedied. Because the schedule and accompanying letter were drafted so that a reasonable reader would construe the notice as requiring mechanical means (and did not clearly show that proper training and supervision would be an acceptable alternative), the notice was insufficiently clear. The tribunal should have cancelled the notice rather than amend it to cure the defect. The appeal was allowed and the tribunal's order affirming the notice was quashed.

Background and parties: BT Fleet Limited appealed under section 11 of the Tribunals and Inquiries Act 2004 against a London East Employment Tribunal decision of 29 July 2004 which had affirmed an improvement notice served by HSE inspector Jason McKenna. The inspector had issued the notice after an accident and site visits, citing breaches of section 2(1) of the Health and Safety at Work etc. Act 1974 and regulation 4(1)(a) of the Manual Handling Operations Regulations 1992.

Nature of the application: The appeal challenged the Employment Tribunal's affirmation of the improvement notice and sought cancellation of the notice on the ground that it did not comply with section 21 of the 1974 Act.

Facts and procedural posture: Following an accident at a BT Fleet workshop, the inspector concluded staff were using a poor lifting procedure and that local risk assessments and supervision were inadequate. The improvement notice (and an accompanying letter) required, inter alia, provision of mechanical lifting aids to avoid manual handling risks or "any other equally effective means" and set a compliance date. BT appealed to the Employment Tribunal, which affirmed the notice but amended the schedule to add that ensuring adequate training and supervision would be an acceptable measure. HSE later accepted BT had complied by implementing alternative measures.

Issues framed by the court:

• Whether the improvement notice complied with section 21 of the 1974 Act by specifying the provision relied on and giving sufficient particulars of reasons.
• Whether inclusion in the schedule of a specified mechanical remedy (with the alternative ‘‘any other equally effective means'') created fatal ambiguity where the inspector did not, or later did not insist on, mechanical means.
• Whether the Employment Tribunal was entitled to amend the notice to cure any such defect rather than cancel it.

Reasoning and decision: The court applied the principle that an enforcement notice must inform the recipient clearly what is wrong and how it must be remedied. It relied on authorities emphasising practical clarity rather than technical drafting, but concluded that here the notice and accompanying letter would reasonably be read as requiring mechanical aids and did not clearly permit compliance by training and supervision. Because section 23(2) makes directions as to remedial measures optional, the fact that the inspector chose to specify a remedy means those specifications form part of the notice; if they are confusing they may invalidate it. Once it was apparent the inspector did not insist on a mechanical solution, the Employment Tribunal should have cancelled the notice rather than amend it. The appeal was allowed and the order affirming the notice was quashed and replaced by an order cancelling it.

Wider comment: The court recognised the need for practical drafting but insisted that notices must enable recipients to understand what is alleged and how to comply; an inspector's latitude does not permit notices that fail that basic communicative function.

Appeal allowed. The improvement notice was invalid because it did not enable the recipient to know clearly what was wrong, why it was wrong and how it was to be remedied; the Employment Tribunal should have cancelled the notice rather than attempt to amend it to cure the defect.

Appeal from the London East Employment Tribunal (decision of 29 July 2004 affirming an improvement notice). Appeal to the High Court under section 11 of the Tribunals and Inquiries Act 2004 resulting in this judgment [2005] EWHC 387 (Admin).