6th March 2018
HSE Enforcement Notice Appeal – New Rules
A recent judgement in a case heard by the Supreme Court has ruled that organisations wishing to appeal enforcement notices will now be able to rely on information that was not available at the time to the inspector who served the notice.
Oil exploration company Chevron was served a prohibition notice from a HSE Inspector back in 2013 for a corroded staircase and platform leading to a helideck on one of its offshore platforms. At the time of the notice being served, the HSE inspector believed the stairway to be unsafe.
As a quick reminder – If inspectors believe that your work activities give rise to a risk of serious personal injury, they may issue you with a prohibition notice. The prohibition notice requires you to stop that activity immediately. You must not resume the activity until you have taken action to remove or control the risk – therefore meaning that Chevron would not have been able to use the helideck or access staircase whilst under the notice.
Chevron lodged an appeal against the notice which was heard at an employment tribunal. During the appeal, Chevron produced an expert’s inspection and test report of the stairway which showed that the metalwork passed British Standard strength test and was actually both fit and perfectly safe for use.
The improvement notice was subsequently overturned and the Supreme Court ruled that a tribunal is entitled to take into account all available evidence, not just that which was available to the inspector at the time when they decided to serve the notice.
Delivering the judgment on behalf of the court, Lady Black noted that HSE inspectors should still serve notices if they believe it is necessary to ensure the safety of workers or others, since they will not always be able to wait for full investigation of the circumstances. She also noted that if a tribunal cancels a notice there is no implied criticism of the inspector. The appeal is an appeal against a notice, not against the inspector’s opinion.
Clearly this new judgement will have repercussions for many other companies placed in a similar situation and wishing to appeal an enforcement notice.
The main piece of guidance to take from this new ruling is that if there is any ambiguity or disagreement from what an Inspector is requiring a business to do, then it’s well worth getting an expert’s opinion!