Chilcott v Thermal Transfer Ltd

This appeal concerned the correct test to be applied by an Employment Tribunal on an appeal under section 24 of the Health and Safety at Work etc. Act 1974 against a Prohibition Notice served under section 22. The court adopted the approach in Railtrack Plc v Smallwood that the Tribunal must form its own view, giving due regard to the inspector's expertise, and must assess the risk as it stood at the time the notice was served rather than deciding the matter by hindsight.

Applying that test, the judge concluded that the planning contravention identified in the notice did not in fact exist at the time the notice was served because a method statement requiring use of a mobile elevated work platform had been in place. The Employment Tribunal had therefore erred in law by reasoning with hindsight. The High Court allowed the appeal and cancelled the Prohibition Notice; the matter was not remitted because the Tribunal would not properly have been able to affirm the notice with the sort of modification suggested.

Background and parties: The appeal was brought by Inspector Chilcott against an Employment Tribunal decision allowing an appeal under section 24 of the Health and Safety at Work etc. Act 1974 and cancelling a Prohibition Notice served on Thermal Transfer Limited on 29 July 2008. The appeal to the High Court was brought under section 11 of the Tribunals and Inquiries Act 1992.

Facts: Thermal Transfer, the main contractor on a site in Swindon, had engaged subcontractors to erect a steel platform about 4 metres high. An agreed task-specific risk assessment and method statement identified "falling from height" as a hazard and required that handrail erection work be carried out from a mobile elevated work platform (MEWP), not by standing on the platform. On 29 July a subcontractor supervisor fell through a hole and was injured. Inspector Chilcott visited, investigated and served a Prohibition Notice alleging a failure to ensure, so far as reasonably practicable, that work at height was planned to avoid the risk of persons falling from height, citing section 3 of the 1974 Act and Regulation 4 of the Work at Height Regulations 2005.

Procedural posture and issues: The Employment Tribunal allowed the contractor's appeal and cancelled the Prohibition Notice, reasoning that the inspector's decision had been premature and excessive. The central legal issues before the High Court were: (i) the correct test for an Employment Tribunal on an appeal under section 24 (whether the Tribunal should form its own view paying due regard to the inspector's expertise, or apply a judicial review style test); (ii) whether the Tribunal applied the correct test and, if not, whether the matter should be remitted or the notice cancelled.

Reasoning: The judge endorsed the approach in Railtrack Plc v Smallwood that a Tribunal is required to form its own view while giving appropriate weight to the Inspector's expertise. The focus of the Tribunal's assessment is the situation on the ground at the moment the notice was served. The Tribunal in this case had proceeded by reference to hindsight, assessing events after the notice rather than asking whether the risk, as at the time of service, warranted the notice. On the facts, a planning contravention did not exist because the method statement was in place requiring use of the MEWP. The Court therefore found an error of law in the Tribunal's approach, and concluded that cancellation of the notice was appropriate. Remittal was refused because the Tribunal would not, on the evidence, have been entitled properly to affirm the notice with a modification addressing supervision rather than planning.

This is an appeal and it is allowed. The Employment Tribunal applied an incorrect test by effectively judging the Inspector's decision with hindsight rather than assessing the risk as at the time the Prohibition Notice was served. Applying the correct approach, the planning contravention identified in the notice did not exist and the Prohibition Notice is cancelled. Remittal was refused because the Tribunal would not properly have been able to affirm the notice with the suggested modification.

Appeal from an Employment Tribunal decision allowing an appeal under section 24 of the Health and Safety at Work etc. Act 1974 and cancelling a Prohibition Notice served under section 22. The appeal to the High Court was brought under section 11 of the Tribunals and Inquiries Act 1992; neutral citation [2009] EWHC 2086 (Admin).