The UK Supreme Court will hear the appeal in HM Inspector of Health & Safety v Chevron North Sea Ltd [2016] CSIH 29. This will be first time that the Supreme Court will hear an appeal concerning whether the service of a health and safety enforcement notice was justified. The issue that the Supreme Court will be asked to decide goes to what is the nature of an appeal against prohibition and improvement notice. The outcome will have a material effect on how such appeals are determined by employment tribunals (who determine these appeals at first instance).
The appeal in question is from the decision of the Scottish Court of Session (First Division, Inner House, which is the highest civil appellate court in Scotland). The Court of Session upheld the Aberdeen Employment Tribunal’s decision to cancel a prohibition notice that had been served on Chevron. The notice was served in respect of an offshore gas processing installation. During a planned inspection by a HSE Inspector he observed what he thought to be corrosion in three stairways and staging leading to and surrounding a helipad. The helipad, stairways and stagings were the primary evacuation route for the installation.
In order to serve the notice, the Inspector was required to be of the opinion that there was a serious risk of personal injury. The notice stated that he was of this opinion and that the risk was because of persons falling through the stairways and staging.
After the notice was served Chevron engaged a third party to test the stairways and staging. The tests were not completed until seven months later. The results strongly suggested that in fact the stairways and staging met the required British Standard in terms of strength; that in fact there was no serious risk of personal injury.
The Employment Tribunal cancelled the notice in respect of two of the stairways. In doing so they relied upon the strength testing evidence. This was evidence that the Inspector did not have or could not reasonably have been expected to know about at the time he served the notice (“new evidence”). The Tribunal’s approach was contrary to how the Court of Appeal in Rotary Yorkshire v Hague [2015] EWCA Civ 696 recently stated employment tribunals should determine appeals. In that case it was stated that the only relevant evidence as to a risk of serious personal injury was such evidence as was available or ought reasonably to have been available to the inspector at the time he or she served the notice. This confirmed what had been the approach in practice and had been applied by the appellate courts in England and Wales (see, for example MWH v Wise [2014] ACD 96 at para.22).
Despite this, the Court of Session declined to follow the Court of Appeal. It held that the Court of Appeal’s approach was incorrect and upheld the Employment Tribunal’s decision. The Chevron approach is more favourably to duty holders who are challenging a notice, whereas the Court of Appeal’s approach is more favourable to the inspector.
The current state of the law is therefore that there are divergent approaches: in England and Wales “new evidence” is not permitted, whereas it is in Scotland. It is unsatisfactory that there should be this difference with regard to such a fundamental issue. Clarity from the Supreme Court is therefore needed and will be eagerly anticipated by both health and safety regulators and duty holders.
A date for the Supreme Court appeal has not yet been fixed.
About Cyril Adjei
Cyril Adjei is regularly instructed in appeals against health and safety notices. He has appeared in some of the leading cases in this area. To read more about his practice, please click his profile on the right.
health and safety, supreme court, cyril adjei
