HM Inspector of Health and Safety v Chevron North Sea Limited

On an appeal against a prohibition notice under section 24 of the Health and Safety at Work etc Act 1974, the employment tribunal must determine for itself whether the relevant risk existed when the notice was served. The appeal concerns the notice, rather than merely the reasonableness of the inspector’s opinion.

The tribunal may consider all evidence relevant to the state of affairs at that time, including evidence obtained after service which could not have been available to the inspector. If that evidence establishes that the risk did not exist, the tribunal may modify or cancel the notice even though the inspector was fully justified in serving it.

An inspector served Chevron North Sea Ltd with a prohibition notice after concluding that corrosion had made access structures on an offshore installation unsafe. Later testing indicated that, apart from damage caused during the inspection, the metalwork met the relevant strength standard and presented no risk of personnel falling through it.

The employment tribunal admitted the later evidence and cancelled the notice. The First Division of the Inner House dismissed the inspector’s appeal in [2016] CSIH 29, declining to adopt the narrower approach taken in Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696.

The issue was whether an appeal under section 24 of the Health and Safety at Work etc Act 1974 is confined to information available, or reasonably available, to the inspector when the notice was served.

1. The appeal was dismissed unanimously. Lady Black, with whom Lord Mance, Lord Sumption, Lord Reed and Lord Hodge agreed, held that an employment tribunal hearing an appeal under section 24 of the Health and Safety at Work etc Act 1974 may consider all available evidence relevant to the circumstances existing when the prohibition notice was served, including evidence obtained later.

2. Section 22 makes the inspector’s opinion that an activity involves a risk of serious personal injury sufficient for a prohibition notice to come into existence. On appeal, however, the focus shifts from the inspector’s opinion to the notice itself. The tribunal must form its own view of whether the specified risk existed at the material time, while paying due regard to the inspector’s expertise. The inspector’s opinion and reasons remain relevant evidence, but they do not limit the material the tribunal may consider.

3. The narrower approach adopted in Hague (One of Her Majesty’s Inspectors of Health and Safety) v Rotary Yorkshire Ltd [2015] EWCA Civ 696 was rejected. Section 24 does not confine the tribunal to deciding whether the information known, or reasonably available, justified the inspector’s action. Such a restriction would prevent an effective factual appeal where later evidence demonstrated that the factual basis of the notice was wrong.

4. Admitting later evidence does not criticise or inhibit inspectors. They may need to act urgently and without comprehensive information. A notice provides immediate protection and remains effective during an appeal unless suspended. Contravention before cancellation remains a criminal offence.

5. The broader construction also avoids leaving an employer subject to an immediate notice which the inspector cannot withdraw, despite proof that the perceived risk never existed. The tribunal therefore correctly considered the expert evidence and cancelled the notice because the relevant risk had not existed when it was served.

1. United Kingdom Supreme Court: Dismissed the inspector’s appeal unanimously and affirmed the Inner House’s interpretation of section 24 of the Health and Safety at Work etc Act 1974.

2. First Division of the Inner House of the Court of Session: In [2016] CSIH 29, dismissed the inspector’s appeal and held that the tribunal was entitled to consider the subsequent testing and analysis.

3. Employment Tribunal: Considered the later expert evidence, found that no risk of serious personal injury had existed when the notice was served, and cancelled the prohibition notice.