Eze & Anor v Health And Safety Executive

A prohibition notice under section 22 of the Health and Safety at Work etc. Act 1974 must be assessed by reference to the statutory basis stated in the notice. Where the notice relies on sections 2 and 3, the relevant question is whether the recipient had sole control of the activities, not merely some degree of control. An employment tribunal’s misdirection on that issue may be corrected without remittal where its factual findings make the proper outcome inevitable. A registered owner’s involvement in planning and ownership, without evidence of control over day-to-day works, does not establish joint sole control. Costs orders for unreasonable conduct and non-compliance with directions will be disturbed only where they fall outside the range of decisions reasonably open to the tribunal.

The appellants challenged prohibition notices issued by the Health and Safety Executive concerning conversion works at Parkeston House. The Employment Tribunal dismissed their appeals and affirmed the notices. It also ordered the first appellant to pay costs arising from non-compliance with procedural directions and disruptive conduct.

The appeal to the High Court was brought on points of law under section 11 of the Tribunals and Inquiries Act 1992. The central issues were whether the tribunal had applied the correct statutory test concerning control of the works, whether the notices against each appellant could stand, whether remittal was required, and whether the costs orders disclosed legal error, bias or procedural unfairness.

1. Substantive appeals. The tribunal had misdirected itself by asking whether each appellant had some degree of control over the works. The prohibition notices relied on sections 2 and 3 of the Health and Safety at Work etc. Act 1974, which contemplate unified control. The correct question was whether each appellant was in sole control of the site, requiring a finding of joint sole control where control was alleged to be shared.
2. The distinction was material. Section 4 of the Act recognises possible divided control of premises, whereas sections 2 and 3 impose duties on the person able to exercise complete control over the relevant matters. The tribunal had focused on section 4 principles although section 4 was not identified in the notices.
3. Remittal was unnecessary in the first appellant’s case. The tribunal’s accepted findings, including that he engaged and directed the works, was regarded as the person in charge, ordered materials and insisted that the works continue, overwhelmingly established sole control. The notices against him could therefore be affirmed notwithstanding the tribunal’s misdirection.
4. The second appellant’s appeal was allowed. Planning involvement and registered ownership did not establish control over day-to-day building operations. There was no finding that she attended the site or issued directions, and no evidential basis for concluding that she had joint sole control or even some degree of operational control. Remittal was unnecessary.
5. The costs appeal failed. The tribunal was entitled to order costs under rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 following non-compliance with directions. There was no basis to conclude that the costs were not thrown away, that their assessment was unfair, or that the tribunal was actually or apparently biased. A firm response to contemptuous or disruptive behaviour did not itself establish apparent bias.
6. The first appellant’s appeals were dismissed. The second appellant’s appeal was allowed.

• Employment Tribunal: Appeals against the prohibition notices were dismissed and the notices affirmed. The tribunal also ordered Kinsley Eze to pay costs.
• High Court (Administrative Court): The court allowed Sawako Hara’s appeal, dismissed Kinsley Eze’s appeals, and declined to remit the substantive issues.