Supreme Court judgment in HM Inspector of Health and Safety v Chevron North Sea due next Thursday

The issue in this case is whether the Employment Tribunal, hearing an appeal under section 24 of the Health and Safety at Work etc Act 1974 by a person on whom an improvement notice or prohibition notice has been served, is entitled to take into account evidence which was not known and could not reasonably have been known to the inspector at the time he issued the notice.

Following an inspection of the respondent’s offshore installation in the North Sea on 23 April 2013, the appellant considered that corrosion on the stairways and gratings leading to the helipad was such as to render them unsafe.

The respondent, in agreement with the appellant, started remedial work that day. The appellant served a Prohibition Notice on the respondent on that evening. It identified the risk of serious personal injury to persons falling through the affected areas because they were in a weakened state due to corrosion and ordered the respondent to cease using the stairways until they were rendered safe. Laboratory testing later carried out on behalf of the respondent indicated that the corrosion had not in fact rendered the areas unsafe.

The respondent appealed against the Prohibition Notice to the Employment Tribunal under section 24 of the Health and Safety at Work etc Act 1974. The Tribunal considered that it ought to take the subsequent testing results into account in assessing whether the Prohibition Notice should have been served, as any evidence which shed light on the situation as it had been at the time was relevant to the question of whether the Prohibition Notice should have been served.

The Tribunal cancelled the Prohibition Notice, concluding that it would be unjust for a notice to remain in place when it had transpired that its factual basis was erroneous, regardless of whether the information could have been known to the inspector at the time. The Inner House dismissed the appeal, holding that an appeal on the facts under section 24 required the Tribunal to have regard to any competent information available at the time of its hearing on appeal in order to determine whether an actual risk existed at the time the Prohibition Notice was issued.