For the past several years there has been a conflict between rulings at appellate level in England and Scotland over the approach to be taken by courts when hearing appeals against prohibition and improvement notices issued by the HSE. In February 2018 the Supreme Court resolved that conflict in favour of the employer with its ruling in HM Inspector of Health and Safety v Chevron North Sea Ltd.
Mark Scoggins reviews the decision in Chevron and gives his take on the implications for future enforcement action and appeals against enforcement notices. Though Chevron turned solely on the admissibility of evidence coming to light after service of a notice, he will look at wider considerations: the effect of a decision to mount no challenge by way of appeal to an employment tribunal; the admissibility in evidence on criminal prosecution of a notice which has been left unchallenged; the evidential value of a failed appeal; the importance of swift action to present a cogent defence when a notice is threatened or served; and the prospects that HSE may change its established practices as a consequence of the Supreme Court’s judgment.
Mark has very kindly provided a number of key top tips of interest.
- Recognise that a prohibition or improvement notice can be validly issued even if the factual basis on which it is served is entirely incorrect.
The Health and Safety at Work Act requires only that the issuing inspector be of the honest opinion that a breach of duty is being committed by the recipient.
- Take an early decision on whether to appeal.
An appeal must be lodged with an employment tribunal within 21 days of the notice being issued (even if the notice has delayed effect), and though the tribunal has power to extend that time limit it will do so only in truly exceptional cases.
- If you think the notice unjustified but decide against an appeal, tell the HSE that you think the notice flawed, and provide the evidence to support that view. Though failure to appeal should not be treated as any admission that you were in breach as alleged in the notice, putting your position formally on record may help in discouraging the HSE from mounting a prosecution against you for the alleged breach.
- If you bring an appeal but the HSE launches a prosecution before it is heard, consider asking the tribunal to adjourn the appeal pending the outcome of the criminal case.
It is usually unwise to show your full hand in the employment tribunal while defending an ongoing prosecution.
- If you appeal a notice, consider a parallel challenge to any bill you are sent under the Fee for Intervention scheme.
You can expect HSE to send you an FfI invoice in respect to the notice. Appeal against the notice does not operate as an appeal also against the bill. You will need to challenge the bill separately, under the HSE’s recently-revised dispute procedure.
By Mark Scoggins
*Please note, the views expressed by the original article author are theirs alone and do not necessarily represent those of Washingtondowling Associates Ltd or The SHE Show and therefore we take no responsibility for the content or accuracy of this post.