Chilcott v Thermal Transfer Ltd

An Employment Tribunal hearing an appeal against a prohibition notice under the Health and Safety at Work etc. Act 1974 must form its own view of the relevant risk, while giving due regard to the inspector’s expertise. The appeal is not confined to judicial review of the inspector’s genuineness or reasonableness.

The risk must be assessed as at the time the notice was served. Later evidence may be considered to determine the position at that time, but the tribunal must avoid deciding the matter with hindsight. The assessment is multi-faceted and the relative weight of factors is for the tribunal. A notice cannot properly be affirmed with modifications addressing a different contravention from the one specified in the notice.

The case concerned an appeal under section 11 of the Tribunals and Inquiries Act 1992 from an Employment Tribunal’s decision under section 24 of the Health and Safety at Work etc. Act 1974. The Employment Tribunal had allowed an appeal against a prohibition notice served after a worker fell from a steel platform at a construction site.

The notice identified a risk of serious personal injury from work at height and alleged inadequate planning to avoid falls, contrary to section 3 of the 1974 Act and regulation 4 of the Work at Height Regulations 2005. The central issues were the proper scope of the Employment Tribunal’s appellate jurisdiction, the date at which the risk had to be assessed, and whether the notice could be modified to address inadequate supervision.

The appeal was allowed, but the prohibition notice was cancelled.

1. Nature of the appeal. The court adopted the approach in Railtrack Plc v Smallwood. An Employment Tribunal hearing an appeal under section 24 of the Health and Safety at Work etc. Act 1974 must reach its own decision, giving due regard to the inspector’s expertise. Its task is not limited to reviewing the genuineness or reasonableness of the inspector’s opinions.
2. Relevant time and method of assessment. Sections 22 and 24 focus attention on the situation when the prohibition notice was served. The tribunal must decide whether the relevant risk existed at that time. It may consider later evidence to establish what the situation was at the relevant date, but must not substitute a hindsight assessment. Risk assessment is a multi-faceted exercise, in which some factors may carry greater weight than others.
3. Application to the notice. The notice alleged that the company had failed to plan work at height so as to avoid the risk of falling. The agreed method statement did contain such a plan. Applying the correct approach, the alleged planning contravention did not exist when the notice was served. The Employment Tribunal had instead reasoned with the benefit of hindsight and had therefore erred in law.
4. Modification. The notice could not properly be modified to address a lack of supervision. That was not the contravention identified in the notice, and the undisputed evidence did not permit a properly directed tribunal to affirm the notice in modified form. The notice was therefore cancelled. Each side was ordered to bear its own costs here and below.

1. Employment Tribunal: allowed the appeal against the prohibition notice under section 24 of the Health and Safety at Work etc. Act 1974.
2. High Court (Administrative Court): allowed the appeal under section 11 of the Tribunals and Inquiries Act 1992, but cancelled the prohibition notice and ordered that each side bear its own costs here and below.