UK: Time To Look At HSE Notices More Closely?

Today the Supreme Court issued judgment in a Scottish case concerning offshore health and safety, and in particular the information which could be considered in appeal of notices served by the HSE under the Health and Safety at Work etc. Act 1974 (the 1974 Act). On one hand, this decision gives clear authority for wider scope in appealing notices but on the other, it also gives encouragement for notices to be served by the HSE. Now more than ever, duty holders will need to carefully, thoroughly and quickly decide whether to appeal HSE notices.

The decision is here and it’s worth a look.

Stairway corrosion?

The background to this case was that an offshore oil and gas operator was served a prohibition notice under section 21 of the 1974 Act for failing to provide safe access to the helideck via a stairway. An HSE inspection was made in April 2013 and the inspector was of the opinion that (alleged) corrosion to the steel stairway area compromised safe evacuation. As prohibition notices are publicly accessible and as contravention of a notice will give rise to criminal sanctions, they are taken very seriously by duty holders.

Appeal with new evidence

Appeals against notices such as this are made to the employment tribunal and must be made within 21 days. An appeal to the employment tribunal was duly lodged. In the run up to the appeal hearing the operator removed the steel material complained of and carried out further analysis. The outcome determined that the steel was actually within British Standard test strength – except for a small section of panel that could not be tested as it had been damaged by the inspector striking it with a fire fighting axe to test it. Had it not been struck by the axe, the court observed that this panel section may also have passed.

HSE argument and court decisions

The HSE challenged this, arguing that the appeal should be based on the evidence available (or that should have been available) to the HSE inspector at the time of the inspection. The inspector did not have this detailed analysis evidence when his notice was served. The Tribunal decided it was allowed to consider this new analysis evidence in reaching a decision and cancelled the notice. It concluded that at the time of the notice (given the further analysis evidence of the stairway) there was not a risk of serious personal injury.

The HSE appealed. The first appeal was to the Inner House of the Court of Session in Edinburgh, which was unsuccessful. The HSE then appealed to the Supreme Court. The Supreme Court decision was issued by Lady Black on 8 February 2018 and this supported the earlier tribunal and court findings meaning the HSE lost and it was the correct decision to cancel the notice.

Impact of the judgment

What is worthy of further thought and reflection are the comments of Lady Black and what impact there may be upon HSE notices and appeals going forward.

At paragraph 18 of the judgement Lady Black carefully explains that while the opinion of the inspector as to whether there is risk of serious personal injury is what matters in terms of the issuing of the notice (under section 22 of the 1974 Act), when at appeal (under section 24 of the 1974 Act) it is not the opinion of the inspector but the notice itself which is being appealed. Accordingly, a wider review under section 24 appeal is appropriate. In this particular case, the opinion of the inspector was based on the perceived corrosion. The basis of the perception (i.e. the level of the corrosion) and the reasoning for that perception could be challenged with new evidence while at appeal under section 24.

While the HSE was unsuccessful in its appeals Lady Black does highlight that her wider interpretation of section 24 does not reduce the effectiveness of notices. Lady Black observes that generally notices will remain in force while the appeal is pending unless suspended by the tribunal. Lady Black points out that there is no criticism of the inspector when new evidence leads to a different conclusion about risk and that his decision often has to be taken as a matter of urgency.

She goes on to comment that "there is no reason for him to be deterred from serving the notice by the possibility, that should more information become available at a later stage, his concerns may turn out to be groundless. Indeed, he might just as well feel less inhibited about serving it, confident that if it turns out that there is in fact no material risk, the position can be corrected on appeal." So while this decision goes against the HSE, the Supreme Court appears to be saying that HSE inspectors should not feel deterred and perhaps encouraged to serve notices given this decision.

As ever, if you would like to discuss Health and Safety issues, notices or appeals don't hesitate to get in touch with me or your usual Brodies contact.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.