Malcolm Gunnyeon, a partner in Dentons’ Dispute Resolution Team, tells Project Scotland that a recent case opens a potential appeal avenue for construction firms hit with prohibition notices
SCOTTISH construction firms may be well aware of the wide-ranging powers at the disposal of HSE inspectors but a case involving a North Sea oil rig has set a precedent for companies looking to challenge enforcement action, using their own expert advice.
Prohibition and Improvement Notices issued under Sections 22 and 23 of the Health & Safety at Work etc. Act 1974 are an important tool in safeguarding employees, particularly those working in hazardous environments, such as building sites. But their impact is harsh on those who may not have broken any rules: an enforced shut-down of operations will inevitably prove costly, and the notices stay on the HSE’s database for five years as a very public black mark against the firm.
This appeared to be the fate of Chevron North Sea following an inspection in 2013, when the HSE inspector formed the view that the stairs and platforms leading to an oil rig’s helideck had corroded and weakened to the point that they were unsafe.
The concern was that the steelwork could give way under a person’s weight, resulting in them falling through when trying to access the deck.
The HSE inspector, therefore, served a Prohibition Notice on Chevron.
However, the oil company was convinced that the steelwork was in a perfectly safe condition, and marked an appeal to the Employment Tribunal. Chevron also sent a sample of the steelwork away for expert analysis. This eventually returned the conclusion that all of the relevant steelwork met the requisite British Standard and there was no risk of a person falling through it.
Understandably, Chevron sought to rely on this expert evidence in the appeal. Although that may seem like a straightforward proposition, the question of whether the evidence was admissible had to be taken all the way to the Supreme Court.
Both parties agreed that, in such an appeal, the tribunal is required to form its own view of the facts and to focus on any risk that existed at the time that the relevant notice was served. However, the parties disagreed on the question of what material the tribunal was entitled to take into account as part of that exercise. Could it consider information not available to the inspector at the time?
Eventually, the Supreme Court judges determined that they could “see no good reason for confining the tribunal’s consideration to the material that was, or should have been, available to the inspector. It must…be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was”.
In other words, the role of the tribunal is to determine, as a matter of fact, whether any risk to safety actually existed at the time that the notice in question was served. That is crucially different from the terms of Section 22 of the 1974 Act, which permits an inspector to serve a Prohibition Notice if he or she is “…of the opinion” that there is “…a risk of serious personal injury”.
The Court was at pains to make clear that there should be no criticism of an inspector if an appeal reaches a different view about the existence of a safety risk, recognising that these decisions are often taken as a matter of urgency, are always a matter of opinion and are taken by inspectors in the utmost good faith.
Equally, the Court rejected the suggestion that allowing additional information to be considered on appeal would somehow reduce the effectiveness of Prohibition Notices as a tool to protect employee safety.
After all, it is only if the additional evidence demonstrates that there was no risk to safety that an appeal will succeed. However, for sectors such as construction which, due to the nature of their work, naturally attract the most attention from HSE inspectors, the ruling earlier this year does at least provide an avenue for some redress where a company can clearly show that its methods and operations were safe.
What is clear from the Court’s decision is that while these notices will remain an effective tool against those organisations who do not give sufficient importance to health and safety, businesses that feel wronged by an inspector’s judgement now have a route to clear their name and protect their revenue stream.
Those who do not take the necessary steps to protect their employees will still, quite properly, find their activities restricted or stopped entirely by the service of a notice.