Wilcox v Survey Roofing Group Ltd

An appeal against cancellation of a prohibition notice under the Health and Safety at Work etc Act 1974 must assess the facts known, or reasonably obtainable, by the inspector when the notice was issued. A risk means a possibility of danger, not actual danger. Under regulation 6 of the Work at Height Regulations 2005, training is an additional measure at the bottom of a hierarchy. Where reasonably practicable, an employer must provide equipment to prevent a fall or minimise its distance and consequences. A standard industry method does not necessarily comply with statutory duties.

Survey Roofing appealed under section 24 of the Health and Safety at Work etc Act 1974 against a prohibition notice preventing further roofing work near fragile roof lights. The Cardiff Employment Tribunal cancelled the notice, finding that the system of covering roof lights with plywood boards and moving them by leapfrogging, supplemented by training, was reasonably safe.

The Inspector appealed to the High Court under section 11 of the Tribunals and Inquiries Act 1992, alleging errors of law concerning the information available at the time of the notice, regulation 6 of the Work at Height Regulations 2005, HSE guidance and the finding that the method was standard industry practice. The central issues were whether the Tribunal applied the correct temporal test and whether the system eliminated or sufficiently reduced the risk of a serious fall.

1. Appeal allowed. The Tribunal’s decision was set aside and the prohibition notice upheld. Remittal was unnecessary because, on the findings and concessions made, a properly directed Tribunal would inevitably reach that result.

2. The section 24 appeal to the Employment Tribunal was an appeal on the merits, but its focus was the situation when the notice was served. The Tribunal had to decide whether the facts known, or reasonably capable of being known after proper investigation, justified the inspector’s action at that time. The High Court’s jurisdiction under section 11 of the Tribunals and Inquiries Act 1992 was confined to points of law, including material statutory misconstruction and irrational factual findings. The court applied Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696.

3. The Tribunal’s two-stage reasoning failed to apply the correct temporal test. It relied on detailed facts about the method of work and the contractors’ training which had first been established after the notice was issued. It had not found what information the Inspector actually possessed, or ought reasonably to have obtained, before issuing the notice.

4. In the enforcement context, risk means a possibility of danger. A fall through an uncovered fragile roof light while working nearby or passing across the roof involved a possibility of serious personal injury. The court followed and applied R v Board of Trustees of the Science Museum [1993] 1 WLR 1171.

5. Regulation 6 imposed a hierarchy of precautions. Work at height should be avoided where reasonably practicable; existing places of work and access should be used where reasonably practicable; otherwise equipment should be provided to prevent a fall. If the risk remained, equipment should minimise the distance and consequences of a fall, together with additional training or other measures. Training alone could not eliminate risks arising from illness, inadvertence, distraction or stupidity. The court applied Health and Safety Executive v Polyflor Ltd [2014] EWCA Crim 1522, [2014] ICR 1142.

6. The plywood system and training did not eliminate the risk. In the absence of any contention that further safety equipment was not reasonably practicable, Survey Roofing was in breach of sections 2 and 3 of the Health and Safety at Work etc Act 1974 and regulation 6(3) of the Work at Height Regulations 2005.

7. HSG33 was guidance, not legislation. The Tribunal was entitled to find that paragraph 187 did not require continuous barriers where paragraph 185 did not apply. The finding that the system was a standard industry method was rationally open to the Tribunal, but that fact did not establish statutory compliance.

• Cardiff Employment Tribunal: On 17 December 2015, the Tribunal unanimously cancelled the prohibition notice.
• High Court (Administrative Court): On appeal under section 11 of the Tribunals and Inquiries Act 1992, the Tribunal’s decision was set aside and the notice upheld.