Shiva Ltd v Boyd (An Inspector of Health And Safety)

An employment tribunal appeal concerning a stay pending possible criminal proceedings remains a case-management decision. The applicant must show a real risk of substantial prejudice which may lead to injustice if the stay is refused. The court must consider the particular regulatory and criminal context, together with the public interest in the timely determination of proceedings and in avoiding inconsistent outcomes.

On an appeal on a point of law, the appellate court does not conduct a rehearing or substitute its own discretionary assessment. It may intervene where the tribunal applied the wrong legal principle, failed to take account of a material matter, relied on an immaterial matter, or reached a decision unavailable on the facts. The privilege against self-incrimination protects against compulsion; it does not prevent a party voluntarily choosing to present an exculpatory case.

Shiva Limited appealed under section 11 of the Tribunals and Inquiries Act 1992 against two decisions of an Employment Judge. The Judge had refused a stay of the company’s appeals against two prohibition notices issued under section 22 of the Health and Safety at Work etc. Act 1974, and had refused reconsideration.

The proposed stay was sought because the Health and Safety Executive had notified the company and its managing director of intended criminal proceedings arising from the same facts. The company argued that disclosure and testing of its case in the tribunal appeals would prejudice its position in any prosecution and interfere with its rights to silence and against self-incrimination. The central issues were the proper test for a stay and the appellate court’s role in reviewing the Employment Tribunal’s decision.

1. Appeal dismissed. The company had not shown that the Employment Judge erred in law in refusing a stay.
2. An applicant seeking a stay pending related criminal proceedings must show a real risk of substantial prejudice which may lead to injustice if the stay is refused. The power is discretionary and must be exercised with great care. The court must consider competing considerations, including the public interest in avoiding delay and in determining a prohibition-notice appeal before any prosecution for contravening the notice. That public interest includes avoiding a criminal conviction being followed by cancellation of the notice on appeal (paras [22]-[28]).
3. The fact that the proceedings were regulatory appeals, rather than ordinary civil proceedings, and that the parties might become prosecutor and accused, did not remove the requirement to establish serious prejudice. Those features were relevant to the application of the test, but did not establish it (paras [25]-[28]).
4. The appeal under section 11 was an appeal on a question of law, not a rehearing. The court had to determine whether a fair procedure had been followed where procedural fairness was the issue, but a stay or adjournment ordinarily involved a discretionary balancing exercise. Intervention was justified where the tribunal misstated the law, failed to consider a material matter, considered an immaterial matter, made a legally flawed finding, or reached a decision that was not open to it on the established facts. The appellate court was not entitled simply to substitute its own view (paras [29]-[43]).
5. The privilege against self-incrimination protects against being compelled, on pain of punishment, to provide evidence or information. The company was not compelled to give evidence in the tribunal appeals. Its choice whether to advance an exculpatory case did not itself create a real risk of serious prejudice or make a fair criminal trial impossible (paras [44]-[58]).
6. The alleged loss of forensic surprise did not justify a stay. Fairness is not served by litigation by ambush, and a prosecutor’s opportunity to identify the issues before trial did not constitute the required substantial prejudice. The Judge’s conclusion that the company had not discharged the burden of establishing such prejudice disclosed no error of law (paras [50]-[60]).

1. High Court (Administrative Court): appeal under section 11 of the Tribunals and Inquiries Act 1992 dismissed.
2. Employment Tribunal: Employment Judge Truscott QC refused a stay of the appeals against two prohibition notices and subsequently refused reconsideration. The decisions are identified in the judgment as dated 10 November 2020 and 9 December 2020.