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

The High Court dismissed the appellant's section 11 appeal against Employment Judge Truscott's refusal to stay Employment Tribunal appeals against two prohibition notices issued under section 22 of the Health and Safety at Work etc. Act 1974. The court confirmed that an applicant for a stay pending related criminal proceedings must show a real risk of substantial prejudice which may lead to injustice. The judge had correctly applied that test and had not erred in law in holding that the appellant had not demonstrated such prejudice.

The court held that the privilege against self-incrimination is directed at compulsion and does not prevent a party voluntarily adducing exculpatory evidence in tribunal proceedings; nor did the potential for a prosecuting authority to see the appellant's case in the tribunal, and to refine a criminal case accordingly, amount to the real risk of serious prejudice required to justify a stay. The judge also correctly considered the public interest in avoiding a conviction for breach of a prohibition notice before an appeal against that notice had been decided.

Background and parties:

• The appellant, Shiva Limited, appealed to the High Court under section 11 of the Tribunals and Inquiries Act 1992 against two Employment Tribunal decisions (refusal of a stay and refusal of reconsideration) made by Employment Judge Truscott. The prohibition notices had been issued under section 22 of the Health and Safety at Work etc. Act 1974 in relation to façade work at 55 Bermondsey Street.
• The Health and Safety Executive (the respondent) had indicated intended criminal proceedings for alleged breaches of prohibition notices and duties under sections 2(1) and 3(1) of the 1974 Act; no prosecution had yet been begun.

Relief sought and procedural posture:

• The appellant sought a stay of the Employment Tribunal appeals pending any criminal proceedings on the basis that pursuing the appeals would prejudice any future criminal prosecution and breach rights such as the right to silence and the privilege against self-incrimination.
• Employment Judge Truscott refused the stay (10 November 2020) and refused reconsideration (9 December 2020). The High Court heard the s.11 appeal and dismissed it.

Issues framed:

1. What is the appropriate test for granting a stay of tribunal proceedings where related criminal proceedings are contemplated?
2. Whether the Employment Tribunal erred in law or was unfair in refusing the stay, having regard to the right against self-incrimination, the risk of prejudice, the public interest and the parties' positions.

Court's reasoning:

• The court agreed with the Employment Judge that an applicant must show a real risk of substantial prejudice which may lead to injustice to justify a stay. That approach accords with authority and the need to balance competing considerations, including the public interest in timely determination of civil/regulatory proceedings and the risk of inconsistent outcomes (for example a criminal conviction followed by cancellation of a prohibition notice on appeal).
• The court held that the privilege against self-incrimination protects against compulsion, and does not prevent a party voluntarily presenting exculpatory evidence in tribunal proceedings. The appellant could decline to give evidence and the burden in the tribunal lay with the respondent to prove risk of serious personal injury.
• The Employment Judge had considered the specific factual matrix, including available disclosure and expert evidence, and reasonably concluded there was no real risk of serious prejudice. The judge was entitled to conclude that any evidence the appellant might adduce would likely be exculpatory and that the respondent already had investigatory powers under section 20 of the 1974 Act to obtain documents and answers.
• The court also accepted the public interest in resolving appeals against prohibition notices before a criminal prosecution for contravention of those notices proceeded.

Conclusion: The High Court found no error of law in the Employment Tribunal's decision and dismissed the appeal.

Appeal dismissed. The High Court held that an applicant for a stay pending related criminal proceedings must show a real risk of substantial prejudice which may lead to injustice; Employment Judge Truscott had correctly applied that test and did not err in law in refusing a stay because the appellant had not demonstrated such a risk, the privilege against self-incrimination did not assist the appellant in these circumstances, and public interest considerations favoured determination of the tribunal appeals.

Appeal to the High Court under section 11 of the Tribunals and Inquiries Act 1992 from decisions of Employment Judge Truscott (refusal of stay dated 10 November 2020 and refusal of reconsideration dated 9 December 2020). The Employment Tribunal had held a preliminary hearing on 30 January 2020 and listed the substantive appeals for five days starting 22 February 2021. Neutral citation of this High Court judgment: [2021] EWHC 371 (Admin).