Supreme Court rules on Prohibition Notice evidence
HM Inspector of Health & Safety v Chevron North Sea Ltd [08.02.2018]
On 8 February, the Supreme Court gave judgment in a long running Scottish case involving the approach to be taken by the Employment Tribunal when considering the appeal of a Prohibition Notice issued by the HSE.
In April 2013, the HSE inspected one of Chevron’s offshore platforms in the North Sea. One of the inspectors considered parts of the stairways and access to the helideck so corroded as to be unsafe, giving rise to an immediate risk of serious personal injury. In the course of his inspection, he hit one stairway panel with a fire fighting axe in order to demonstrate its fragility. He duly issued a Prohibition Notice (the Notice) on Chevron.
Chevron disagreed with his assessment and appealed the Notice to the Employment Tribunal (the Tribunal). In preparation for the appeal hearing, Chevron arranged for the panels in question to be strength tested. The results demonstrated that they complied with the relevant British Standard and were all in fact safe (save only for the panel which had been subject to the inspector’s attentions with an axe).
The Tribunal’s findings
The Tribunal subsequently found in Chevron’s favour, deciding that it was entitled to take into account information not known to the inspector at the time he issued the Notice. If in fact there was no risk of serious personal injury then it followed that the Notice should be quashed.
The HSE then appealed to the Scottish Court of Session, which agreed with the Tribunal.
In light of the fact that the Court of Appeal, south of the border, had in a previous case (Hague v Rotary Yorkshire ) indicated that information coming to light after the issue of a Notice should not be considered by Tribunals conducting appeal hearings, the Court of Session allowed the HSE to appeal its decision to the Supreme Court.
Supreme Court decision
In a clear, common sense judgment, weighing the various arguments against each other - including those put forward by the HSE to the effect that inspectors’ freedom to act urgently in the interest of safety might be hampered if the Court of Session’s reasoning was upheld - the Supreme Court confirmed that the Employment Tribunal is not limited to considering the matter on the basis of material which was or should have been available to the inspector at the time the Notice was issued.
The Supreme Court’s decision brings welcome clarity to a point which had previously been at odds north and south of the border and which many legal commentators and practitioners thought the Court of Appeal had got wrong in Hague. It will also allow recipients of Improvement and Prohibition Notices to rely on evidence gathered after issue in circumstances in which they and their legal advisors think inspectors have just got it plain wrong.