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

An employment tribunal hearing an appeal against a prohibition notice must reach its own decision on the facts at the time of service, while paying due regard to the inspector’s expertise. The relevant risk is assessed by reference to the information available, or reasonably obtainable through proper investigation, at that time. Subsequent events may be considered where they illuminate the position then existing, but the tribunal must not decide the matter with hindsight.

A remote risk of serious personal injury may justify a prohibition notice. However, the notice must be clearly needed. Where a less onerous direction under the inspector’s investigative powers could protect safety while a decisive test is obtained, it may be wrong to treat a prohibition notice as the only proper course.

Rotary Yorkshire Ltd appealed under section 11 of the Tribunals and Inquiries Act 1992 against an Employment Tribunal decision affirming, with modification, a prohibition notice served under the Health and Safety at Work etc Act 1974.

The notice prohibited access to a high-voltage room because exposed conductors could not be shown to be dead. The tribunal found that the risk of energisation was negligible, but that the conductors could not be proved dead and that this justified the notice. The central issue was whether the tribunal had correctly assessed the available knowledge and whether the inspector should instead have awaited testing or used a direction under section 20(2)(e).

1. Appeal allowed. The Employment Tribunal had jurisdiction to reach its own decision on an appeal under section 24 of the Health and Safety at Work etc Act 1974. Its task was to determine, on the evidence, whether the notice should have been served, while paying due regard to the inspector’s views and expertise.
2. The relevant question concerned the risk existing when the notice was served. Available knowledge included information which could reasonably have been obtained through proper investigation. Later events were not excluded, but they had to be used to identify the situation at the material time rather than to decide the issue with hindsight. This approach followed the reasoning in Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 (Admin), and was supported by MWH UK Ltd v Wise 2014 EWCA 427 (Admin).
3. A remote risk of serious personal injury could justify a prohibition notice. The tribunal was not wrong to proceed on that basis, consistently with Railtrack Plc v Smallwood [2001] ICR 714. The absence of documentary proof that the conductors were dead was capable of establishing a non-trivial safety risk.
4. Nevertheless, the tribunal erred in deciding that issuing the prohibition notice was the only proper response. The inspectors could have directed under section 20(2)(e) that the room remain undisturbed pending testing by an authorised person. The evidence showed that, if the conductors had been proved dead on the day, no notice would have been issued. The notice also carried continuing commercial consequences because it had to remain on a public register.
5. The notice was therefore quashed.

The judgment states that the appeal lay to the High Court under section 11 of the Tribunals and Inquiries Act 1992 and was limited to errors of law. The Employment Tribunal had affirmed the prohibition notice with a modification. The High Court allowed the appeal and quashed the notice.