MWH UK Ltd v Wise (HM Inspector of Health & Safety)

The court considered an appeal against an Employment Tribunal decision which affirmed, with modification, an improvement notice issued under s.21 of the Health and Safety at Work etc. Act 1974. The central legal principle was the duty of a CDM co-ordinator under Regulation 20 of the Construction (Design and Management) Regulations 2007 to identify and collect pre-construction information and to give suitable and sufficient advice to the client, including advising where additional surveys (in this case a refurbishment and demolition asbestos survey) were required to fill significant gaps.

The Employment Tribunal found that MWH had failed to advise the client that no construction should commence until a full asbestos survey had been obtained and characterised the cause of that failure as a systems failure rather than lack of individual competence under Regulation 4. The High Court concluded there was no error of law in the Tribunal's finding that MWH breached Regulation 20, that the Tribunal was entitled to modify the improvement notice to address the systems failure, and that leaving the revised schedule to be agreed or determined was procedurally acceptable. The appeal was dismissed.

This is an appeal to the High Court from an Employment Tribunal decision of 12 December 2012 which affirmed, with modifications, an improvement notice served on MWH under s.21 Health and Safety at Work etc. Act 1974. MWH acted as construction design and management co-ordinator (CDM co-ordinator) for a refurbishment project in which asbestos was later found to be present and where contractors' employees were exposed.

Nature of the claim:

• An appeal against the Tribunal's affirmation, with modification, of an HSE inspector's improvement notice requiring MWH to provide training and take remedial steps for contraventions said to arise under the HSW Act 1974 and the CDM Regulations 2007.

Procedural posture:

• The improvement notice was issued by the inspector on 7 November 2011. MWH appealed to the Employment Tribunal. The Tribunal affirmed the notice but modified the reasons and left the schedule to be agreed. MWH appealed to the High Court on points of law only.

Issues before the High Court:

• Whether the Tribunal was wrong in law to hold that MWH was in breach of duty in failing to give suitable and sufficient advice under Regulation 20 of the CDM Regulations 2007;
• Whether, having rejected the inspector's conclusion that lack of competence (Regulation 4) caused the breach, the Tribunal could permissibly modify the improvement notice to require remedial systems measures;
• Whether the Tribunal's failure to specify the modified schedule left the notice impermissibly uncertain.

Court's reasoning and conclusions:

• The court analysed the statutory framework: the HSW Act 1974 (sections 2(1), 3(1), 21, 24 and 82), the CDM Regulations 2007 (notably Regulations 10, 14 and 20) and the relevant ACOP guidance. It held that the CDM co-ordinator must check the pre-construction information and advise the client if significant gaps exist and if surveys need commissioning.
• The court found no error of law in the Tribunal's factual conclusion that, on the material before the inspector, MWH breached Regulation 20 by failing to advise Northumbrian Water Limited to obtain and include a full refurbishment and demolition asbestos survey within the pre-construction information. The CDM co-ordinator is expected to identify hazards and whether they have been addressed; identifying the need for a full asbestos survey was within that role and did not require asbestos specialist expertise.
• The Tribunal was entitled to determine the cause of the breach on the evidence available to the inspector and to modify the improvement notice to address what the Tribunal found to be a systems failure rather than individual incompetence. The High Court distinguished precedent relied upon by MWH and held the Tribunal acted within its s.24 powers.
• Although the Tribunal's proposed modified wording in one paragraph mistakenly retained a reference to Regulation 4, the court considered that to be an inadvertent slip inconsistent with the Tribunal's express findings and not fatal. The Tribunal reasonably left the detailed drafting of the modified schedule for agreement between the parties or further Tribunal determination under the procedural rules.

Disposition: The appeal was dismissed; the Tribunal's affirmation of the notice with modification stood.

The appeal is dismissed. The High Court held that the Employment Tribunal did not err in law in finding MWH in breach of Regulation 20 of the CDM Regulations 2007 for failing to advise the client to obtain a full refurbishment and demolition asbestos survey; the Tribunal was entitled to treat the cause of the breach as a systems failure and to modify the improvement notice accordingly, and it was permissible to leave the detailed schedule to be agreed or determined subsequently (the Tribunal's retention of a reference to Regulation 4 was an obvious mistake inconsistent with its findings).

Appeal from the Employment Tribunal (Newcastle) decision dated 12 December 2012 which affirmed, with modifications, an HSE improvement notice dated 7 November 2011. The High Court heard the appeal under s.11(1) and Schedule 1 para.16 of the Tribunals and Inquiries Act 1992 and delivered judgment in the High Court: [2014] EWHC 427 (Admin).