Hague (Inspector of Health And Safety) v Rotary Yorkshire Ltd

A prohibition notice must be assessed by reference to the risk reasonably apprehended when it was issued. An appeal to an Employment Tribunal under section 24(2) of the Health and Safety at Work etc Act 1974 is on the facts, but the Tribunal must consider only facts known, or which ought to have been known, to the inspector at that time. Later events cannot retrospectively invalidate a notice. Once the inspector has concluded that a serious personal injury risk exists, the temporary power under section 20(2)(e) is not an alternative to prohibition. A High Court appeal under section 11 of the Tribunals and Inquiries Act 1992 is confined to legal error. Commercial consequences of registration are irrelevant to the merits.

An inspector served an immediate prohibition notice under section 22 of the Health and Safety at Work etc Act 1974 after finding exposed high-voltage conductors which could not be proved dead. The Employment Tribunal upheld the notice, with a modification. Collins J, sitting in the Administrative Court, allowed Rotary Yorkshire Limited’s appeal on a point of law and quashed the notice, holding that a temporary direction under section 20(2)(e) could have been used while testing was arranged. The inspector appealed. The central issues were the scope of the High Court’s jurisdiction and whether the Employment Tribunal could rely on a test carried out after the notice was issued.

1. Appeal allowed. Laws LJ delivered the judgment, with Tomlinson and Kitchin LJJ agreeing. The judgment of Collins J was set aside, the Employment Tribunal’s orders were reinstated, and the inspector received the costs of the High Court appeal and the Court of Appeal proceedings.
2. An appeal under section 11 of the Tribunals and Inquiries Act 1992 is a statutory appeal on a point of law. It permits intervention for material legal error, misconstruction of a relevant statutory provision, an irrational finding of fact, or procedural unfairness. Collins J had substituted his own view of the factual merits for that of the Employment Tribunal. That was not a proper exercise of the statutory jurisdiction.
3. The power in section 20(2)(e) of the Health and Safety at Work etc Act 1974 is ancillary to an examination or investigation under section 20(2)(d). It does not operate as an alternative sanction where the inspector has already concluded under section 22(2) that the activities involve a risk of serious personal injury. The inspector was not required to allow an opportunity to remedy the underlying uncertainty before issuing a prohibition notice.
4. Section 24(2) confers an appeal on the facts as well as the law. Its temporal focus is nevertheless the position when the notice was served. The Employment Tribunal must decide whether the notice was justified on facts known, or which ought to have been known, to the inspector at that time. Later testing which demonstrates that the feared danger did not in fact exist is hindsight and does not retrospectively undermine a notice which was justified when issued. The licensing authorities relied on by Rotary Yorkshire were materially different because they concerned continuing or potentially continuing factual situations: [2011] EWCA Civil 31 and [1971] 2 QB 614.
5. Commercial advantage or disadvantage resulting from registration of a prohibition notice is irrelevant to whether the notice was justified. The inspector’s assessment of risk cannot be qualified by commercial considerations.

• Court of Appeal (Civil Division): Appeal allowed; Collins J’s judgment was set aside and the Employment Tribunal’s orders reinstated.
• High Court of Justice, Queen’s Bench Division (Administrative Court): On 4 July 2014 Collins J allowed Rotary Yorkshire Limited’s appeal under section 11 of the Tribunals and Inquiries Act 1992 and quashed the prohibition notice.
• Employment Tribunal: The Tribunal’s decision, sent to the parties on 2 January 2014, upheld the prohibition notice with a modification.