Enforcement Notices Post Chevron
Peter Gray QC and Chris Gillespie examine the Supreme Court’s decision in HM Inspector of Health and Safety v Chevron North Sea Ltd  UKSC 7 and consider the implications for companies faced with Improvement or Prohibition Notices
An Employment Tribunal hearing an appeal under s24 of HSWA 1974 against an Improvement or Prohibition Notice is entitled to take into account material that was not available to the Inspector at the time the Notice was issued. In so deciding, the Supreme Court has effectively overruled the decision of the Court of Appeal in Hague v Rotary Yorkshire  EWCA Civ 696 in which it had been held that the ET was confined to considering material which was, or which reasonably could have been, known to the Inspector at the time he issued the Notice.
In Chevron an Inspector visiting an offshore installation had concluded that stairways and stagings providing access to the helideck had become corroded and therefore unsafe. A Prohibition Notice was issued. Subsequently, Chevron had the metalwork examined by an expert who concluded that it passed the British Standard strength test and there was no risk of personnel being injured by falling through it.
The ET agreed to hear the evidence in face of objection from the HSE, concluded that at the time the notice was served there was in fact no risk of serious personal injury and cancelled the notice.
The Inner House unanimously upheld the decision of the ET. As its decision was in conflict with that of the CA in Rotary Yorkshire it granted leave to appeal to the Supreme Court.
In coming to its decision, the Inner House had carefully examined the authorities (Railtrack v Smallwood, Chilcott v Thermal Transfer, MWH v Wise, Hague v Rotary Yorkshire) but the Supreme Court preferred to approach the matter from first principles.
It was common ground that a s24 appeal was not limited to the reasonableness or genuineness of the Inspector’s opinion; the ET was required to form its own view of the facts, paying due regard to the Inspector’s expertise. Further, the ET should focus on the risk at the time the Notice was served.
The HSE contended that Inspectors would somehow be inhibited from issuing Notices if they knew that they could be overturned on this basis and that there was a risk of undermining the principles behind the HSWA. The Supreme Court saw no merit in this argument. An Inspector would be entitled to issue a Prohibition Notice under s22 if it was justified in his opinion. If his opinion turned out to be wrong then the position could be corrected on appeal. However, the Notice would subsist until such time as it was cancelled.
The Supreme Court endorsed the opinion of the Inner House that a s24 appeal was not a form of judicial review; an appeal on the facts enables a party to prove that the factual content of the Notice was wrong, however reasonable the view of the Inspector was at the time. In this case that meant the ET was entitled to consider evidence that had subsequently become available and demonstrated that at the material time there was in fact no risk. The Supreme Court pointed out that otherwise an ET would be prohibited from considering evidence, which may even be agreed between the parties, that there was no risk; that the recipient of a Notice would be put to the expense of remedying that which did not need to be remedied; the recipient would face the risk of prosecution if he failed to take remedial measures; finally, the recipient would be exposed to the reputational damage that being included on the public database entails.
Whilst this decision will undoubtedly be welcomed by defence practitioners there is perhaps a hidden danger. Could the HSE in criminal proceedings rely on a failure to appeal an Enforcement or Prohibition Notice to prove that at the material time there was a risk of serious personal injury? The answer may be to enter an appeal wherever there is a risk of prosecution on the basis that in the vast majority of cases any appeal is stayed until the conclusion of criminal proceedings.
More positively, those who defend should encourage their clients to consider whether there is not already material in existence that contradicts the opinion of the Inspector. Plainly there will be greater scope for the use of expert evidence in appropriate cases to demonstrate that, notwithstanding the genuine and reasonable belief of the Inspector, as a matter of fact there was no risk at the relevant time.
Peter is a leading practitioner in regulatory crime and, in particular, in the fields of health and safety, and environmental crime.
Peter has been instructed to appear on behalf of corporate accused in the most serious prosecutions, statutory appeals and high profile Fatal Accident Inquiries in recent years.
In the days of the AG’s list Chris was instructed to prosecute cases on behalf of the HSE. However, since 2010 he has acted exclusively for the defence including cases involving death and serious injury and is now ranked by the Legal 500 as a leading junior.