HM Inspector of Health & Safety loses appeal against tribunal’s decision to cancel prohibition notice

The Inner House of the Court of Session refused the appeal, which raised a particularly important issue on the scope of an appeal to the employment tribunal under section 24 of the Health & Safety at Work etc. Act 1974, namely, whether and to what extent the tribunal can take into account information which was not available at the time of the notice.

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Bracadale, heard that the respondents, Chevron North Sea Ltd, the operators of an offshore installation in the Captain Field, were responsible for ensuring the health and safety of all persons on the installation.

On 23 April 2013, a planned inspection by HM Inspector of Health and Safety and his colleagues identified significant areas of what was thought to be corrosion in the stairway treads on all three stairways leading to and from the helipad, as well as on the grates of the staging running around the perimeter of the helipad.

A loading test was carried out on a tread of the port side stairway, albeit with a fire axe rather than a hammer, in an attempt to shed corroded steel from the grates to determine the thickness of the steel underneath.

The axe sheared through the steel, which led the appellant to conclude that the steel was corroded to such a degree that it would not be able to support the weight of an evacuation of multiple men carrying work equipment and potentially running.

The appellant considered that the stairways and staging were unsafe and therefore served a prohibition notice on the respondents, which stated that the use of the stairways and staging would involve a risk of serious personal injury, by reason of persons falling through them, which would involve a contravention of certain offshore installation regulations.

At the time of the notice, the appellant was aware that remedial works had commenced on the port side stairway, although not on the other two stairways.

The installation manager had offered an undertaking that the remedial work would be undertaken straight away, and that the staging and stairways would not be used until the works had been completed.

The inspectors were to remain on the installation until 25 April 2013 and by the time they departed all the remedial work had been carried out other than the work to the forward, evacuation stairway.

Following the events of 23-25 April 2013, the respondents arranged for the stairways and staging to be removed from the installation and transported to the lab of Exova for testing.

The testing, which did not take place until November 2013, revealed that, except for the panel which had been sheared by the fire axe, all met the British Standard requirement.

The damage to the panel by the fire axe, which sheared the bars rather than applied a load, meant that the strength of that panel, prior to it being damaged, could not be determined.

The respondents challenged the notice and as a consequence of an objection by the appellant to the admission of evidence of the Exova testing, the employment tribunal approached the appeal in two stages.

The tribunal first considered how it would determine the appeal without the evidence of the testing and concluded that the service of the notice on 23 April had been both “unnecessary and unreasonable”.

The tribunal decided to affirm the notice but to modify it to cover only the forward access stairway, as the appellant could have waited before deciding whether to serve a notice until he was leaving the installation, when it was clear that work on that stairway had not yet commenced.

The tribunal then considered whether the Exova testing results ought to be taken into account and concluded that it should not close its eyes to later matters in determining the risk which existed at the time of the notice.

It explicitly rejected the appellant’s argument that, to take into account evidence which did not exist at the time of the notice, would be to undermine the purpose of the legislation, which was to prevent workers being exposed to health and safety risks, and accordingly found that it would be unjust for a notice to remain, when it transpired that its factual basis was erroneous.

On appeal, it was argued that the tribunal erred in concluding that the notice was unnecessary and unreasonable, but that it would have been partially appropriate two days later when the appellant left the installation.

It was also submitted that the tribunal erred in considering the evidence of the Exova testing, as it should to have restricted consideration to evidence which was actually available, or ought to have been available on a reasonable investigation, to the appellant at the time that the notice was served.

The Lord President, with whom the other judges agreed, observed that according to section 24 of the 1974 Act, a person who has been served with a prohibition notice may appeal “against” the notice.

In a written opinion, Lord Carloway said: “The most obvious construction of that is that the person affected can appeal upon the basis of what is stated in the notice. That will include a challenge to a statement of fact that, in this case, the metal was in a weakened condition because of corrosion.

“In normal course, the appellant ought to be entitled to lead such evidence as he wishes to demonstrate that, at the material time (ie the date of the notice) the metal was not in the averred condition. It is thus not immediately apparent why an appeal ‘against’ a notice should be confined to an enquiry into the correctness or reasonableness of the inspector’s decision to issue the notice having regard to the evidence which was, or might reasonably have been, available to him when he did so.

“It follows that, in relation to the second issue raised in the appeal, the Tribunal were correct in having regard to the Exova Report. It was then for the Tribunal to reach their own view upon all the evidence.

“It is not possible to decern any error of law in the Tribunal’s assessment that at the time of the notice ‘the condition of the gratings and stairs, albeit plainly affected by considerable corrosion, did not in fact involve a risk of serious personal injury’.”

The view taken on the second issue is sufficient to dispose of the appeal, but in relation to the first issue, which presupposed the exclusion of the Exova results, the judges held that the tribunal was entitled to reach its own view based on the evidence which it heard.

Lord Carloway added: “They took into account a number of features, including: the temporary measures which had been put in place to prevent the use of stairways and staging; the remedial steps which were underway; the undertakings given by the installation manager; the fact that the stairways and staging would not be used until the remedial works were completed; and the presence of the appellant until 25 April.

“All of these circumstances justified the findings that there was no risk of serious personal injury and that service of the notice was both unnecessary and unreasonable. The criticisms of the Tribunal’s approach are essentially directed towards the weight attached by the Tribunal to particular facts and circumstances. As such there is no true error of law identified, in the absence of an unreasonable conclusion.”