Rotary Yorkshire Ltd v Hague (HM's Health & Safety Inspectors)

The High Court allowed an appeal against an Employment Tribunal decision that had upheld a prohibition notice served under section 22 of the Health and Safety at Work etc Act 1974. The court restated that an employment tribunal on an appeal under section 24 reaches its own decision, paying due regard to the inspector's expertise, and must focus on the state of knowledge at the time the notice was served (see sections 20, 22, 23 and 24 of the 1974 Act and Regulation 4(3) of the Electricity at Work Regulations 1989).

The tribunal had found there was no documentary proof on 13 December 2012 that certain exposed conductors were dead and that a risk, though remote, therefore existed; it modified the notice to record that conductors "are exposed and cannot be proved dead." The High Court held that the tribunal was wrong to conclude that issuing a prohibition notice was the only means of dealing with the situation given the inspectors' belief that the parts were dead and the evidence that, had proof been possible on the day, no notice would have been issued. The appeal was allowed and the prohibition notice was quashed.

Background and parties: The appellant, a sub-contractor on a construction site, installed mechanical and electrical plant. On 13 December 2012 an HSE inspector (the respondent) and two colleagues inspected a High Voltage room containing transformers with exposed jointed cables and exposed conductors. Contact with exposed conductors would risk death or serious injury if live.

Nature of the application: Appeal to the High Court against an Employment Tribunal decision which had upheld a prohibition notice served by the HSE inspector on 13 December 2012. The appellant sought quashing of the prohibition notice.

Procedural posture: The appeal to the High Court was brought under the statutory route for judicial review of tribunal decisions (appeal under section 11 of the Tribunals and Inquiries Act 1992) and was limited to points of law.

Issues framed:

• What is the proper scope of an employment tribunal on an appeal under section 24 of the 1974 Act — whether it is limited to reviewing the inspector's opinion or must form its own view paying due regard to inspector expertise;
• Whether the inspector was entitled to issue a prohibition notice on the evidence available on the day when there was no documentary proof that the conductors were dead;
• Whether less intrusive measures under the inspector's entry and investigatory powers (section 20(2)(e)) could and should have been used pending testing by an authorised person the next day.

Findings of fact and tribunal decision: The tribunal heard evidence over four days. It found two of the four transformers were being commissioned and indicators suggested the relevant switchgear was dead but there was no documentary proof or authorised person on site to test and record that the conductors were in fact dead. The inspectors believed the conductors to be dead but could not be certain. The following day an authorised person tested and established that the conductors had been dead on 13 December. The tribunal accepted there was at most a negligible risk of energisation but nonetheless upheld the prohibition notice after modifying its wording to reflect that the conductors "are exposed and cannot be proved dead."

High Court reasoning: The court reviewed earlier authorities (including Railtrack, Chilcott and MWH) and reiterated that a tribunal must decide whether it would have served the notice at the time it was served, on the information available or which ought reasonably to have been available following reasonable investigation. The court held that the tribunal failed properly to give effect to the inspectors' expertise and to the clear evidence that, had proof been available on the day, the inspectors would not have issued the notice. The tribunal was wrong to decide that the only means of dealing with the situation was to issue a prohibition notice rather than, for example, using powers under section 20(2)(e) to secure the room pending testing.

Result and implications: The High Court allowed the appeal and quashed the prohibition notice. The court recognised the serious consequences of prohibition notices (including statutory registration and reputational effects under the Environment and Safety Information Act 1988) and emphasised that such notices should be issued only where clearly needed, having regard to inspectors' expertise and the facts known or reasonably ascertainable at the time.

Appeal allowed. The High Court held that the Employment Tribunal erred in law by concluding that issuing a prohibition notice was the only means of dealing with the situation when the inspectors believed the conductors to be dead and would not have issued the notice had proof been available on the day. The tribunal had failed to give proper effect to the inspectors' expertise and to consider reasonable alternative measures under the inspector's entry powers. The prohibition notice was quashed.

Appeal from an Employment Tribunal decision under section 24 of the Health and Safety at Work etc Act 1974. The High Court (Administrative Court) heard the appeal under section 11 of the Tribunals and Inquiries Act 1992 and allowed the appeal on 4 July 2014 (neutral citation [2014] EWHC 2126 (Admin)).