Hague (One of Her Majesty’s Inspectors of Health and Safety) v Rotary Yorkshire Ltd

The Court of Appeal allowed the inspector's appeal against Collins J's quashing of a prohibition notice served under section 22 of the Health and Safety at Work etc Act 1974. The court held that (i) an appeal to the High Court under section 11 of the Tribunals and Inquiries Act 1992 is limited to points of law and the Administrative Court should not substitute its view of the factual merits for that of the Employment Tribunal; (ii) the ancillary powers in section 20(2)(e) do not require an inspector to delay or defer a prohibition under section 22 where the inspector has formed the opinion that there is a risk of serious personal injury; and (iii) an appeal under section 24(2) of the HSWA is an appeal on the merits but is confined to the facts which were known or ought to have been known to the inspector at the time the notice was served and does not permit hindsight based on later events. The court also held that commercial disadvantage from registration of a notice is irrelevant to the lawfulness of issuing a prohibition notice.

The appellant inspector served a prohibition notice under section 22 HSWA in respect of access to a high voltage room at the Leeds Arena construction site after inspectors found exposed conductors and could not be sure they were dead. The respondent contractor (Rotary Yorkshire Limited) established the following day that the conductors were dead. The Employment Tribunal, after hearing evidence, upheld the prohibition notice but modified its wording to reflect the inspectors' concern that the conductors "are exposed and cannot be proved dead." Collins J in the Administrative Court allowed the contractor's appeal and quashed the notice on the basis that the inspector should have awaited testing or used section 20(2)(e) as a less draconian measure.

The appellant obtained permission to appeal to the Court of Appeal. The principal issues before the Court of Appeal were: (i) the scope of a section 11 appeal to the High Court on a tribunal decision (whether limited to points of law), (ii) the proper relationship between section 20(2)(e) and a prohibition under section 22, and (iii) whether an employment tribunal hearing an appeal under section 24(2) may take into account subsequent facts amounting to hindsight.

The court held that an appeal under section 11 is restricted to errors of law and that Collins J had impermissibly substituted his view of the factual merits when he endorsed the view that the inspector should have used section 20(2)(e) pending tests. The court further held that section 20(2)(e) is ancillary to an investigation under section 20(2)(d) and does not require an inspector to delay issuing a prohibition when, pursuant to section 22, the inspector is of the opinion that there is a risk of serious personal injury. On the scope of the section 24(2) appeal, the court accepted prior authorities and held that the Employment Tribunal's task is to consider whether the inspector's action was justified by the facts known or which ought to have been known to the inspector at the time the notice was served; later events generally cannot be used as hindsight to undermine a legitimate contemporaneous decision to issue a prohibition. The court therefore allowed the inspector's appeal, set aside Collins J's order, reinstated the tribunal orders, and addressed costs directions.

Appeal allowed. The Court of Appeal held that (a) the section 11 appeal to the High Court was limited to points of law and the Administrative Court erred by substituting its own view of the factual merits; (b) section 20(2)(e) is ancillary to section 20(2)(d) and does not require an inspector to delay issuing a prohibition under section 22 when the inspector is, on the available facts, of the opinion that there is a risk of serious personal injury; and (c) an appeal under section 24(2) is an appeal on the merits but limited to facts known or which ought to have been known at the time the notice was served and does not permit hindsight based on later events.

Employment Tribunal decision (upheld and modified prohibition notice) sent to parties 2 January 2014; appeal to the High Court under section 11 Tribunals and Inquiries Act 1992 heard by Collins J in the Administrative Court who allowed the respondent's appeal and quashed the prohibition notice on 4 July 2014; permission to appeal to the Court of Appeal granted by Aikens LJ on 30 September 2014; Court of Appeal ([2015] EWCA Civ 696) allowed the inspector's appeal on 11 June 2015 and set aside Collins J's order, thereby reinstating the Employment Tribunal's orders.