HM Inspector of Health and Safety v Chevron North Sea Limited

The Supreme Court held that on an appeal under section 24 of the Health and Safety at Work etc Act 1974 against a prohibition notice a tribunal is not confined to the material that was or ought reasonably to have been known to the inspector when the notice was served. The tribunal is entitled to take into account all available evidence relevant to the state of affairs at the time the notice was served, including evidence that comes to light after service, in order to determine whether the risk of serious personal injury existed when the notice was issued. The court considered the statutory scheme (notably sections 22, 24 and 33) and concluded that the appeal is against the notice itself and requires the tribunal to form its own view of the facts, with due regard to the inspector’s expertise.

Background and facts:

• Chevron operated an offshore installation with a helideck accessed by stairways and stagings. An inspector (Mr Conner) served a prohibition notice under section 22 of the 1974 Act after forming the view that corrosion of stairways and gratings created a risk of serious personal injury by falling through.
• Chevron appealed under section 24 to an employment tribunal and, after the appeal was lodged, caused the metalwork to be removed and tested. An expert report (March 2014) showed that, apart from a panel damaged during inspection, the metalwork met the relevant British Standard and did not constitute the perceived risk.

Procedural history: The employment tribunal considered the case in two ways: (i) on material available to the inspector at the time, it would have affirmed the notice (with modification); and (ii) taking into account the later expert evidence, it concluded there was no risk at the material time and cancelled the notice. The Inner House (First Division, Court of Session) upheld the tribunal’s second approach ([2016] CSIH 29). The inspector appealed to the Supreme Court. The Court of Appeal decision in Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696 adopting a narrower approach was identified as a conflicting authority.

Issues framed:

• Whether a tribunal hearing an appeal under section 24 is confined to the material which was, or should reasonably have been, available to the inspector at the time the prohibition notice was served.
• Whether the tribunal may take into account evidence that becomes available after service of the notice in order to determine the factual position as of the time the notice was served.

Reasoning and decision: The Supreme Court agreed with the Inner House. It analysed the statutory scheme, emphasising that section 22 creates the notice when the inspector is of the requisite opinion but that section 24 provides an appeal against the notice itself. The tribunal must therefore determine whether the facts at the time of service justified the notice and is not limited to the information available to the inspector. Practical considerations (the urgent nature of inspectors’ decisions, the seriousness of the consequences of prohibition notices, the existence of criminal sanctions under section 33 and the inability to withdraw immediate prohibition notices under section 23(5)) supported the wider interpretation. The court concluded the tribunal was entitled to consider post‑service evidence establishing the factual position at the material time and dismissed the inspector’s appeal.

The appeal is dismissed. The Supreme Court held that on an appeal under section 24 of the Health and Safety at Work etc Act 1974 an employment tribunal is entitled to take into account all evidence relevant to the state of affairs at the time the prohibition notice was served, including material arising after service, in deciding whether the notice should be affirmed, modified or cancelled. This interpretation follows from the statutory scheme and ensures the appeal is a substantive determination of the facts of the notice rather than a narrowly confined review of the inspector's contemporaneous information.

Appeal from the First Division of the Inner House, Court of Session [2016] CSIH 29 which upheld the employment tribunal's decision to have regard to evidence obtained after service of the prohibition notice; the Supreme Court allowed the respondent’s view and dismissed the inspector's appeal. The Court of Appeal authority Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696 reached a contrary conclusion and was considered in the Supreme Court.