19th June 2018
Tips for Appealing against a HSE Enforcement Notice
The HSE has recently lost a court case in which it claimed that certain evidence should be inadmissible by the other party. The favourable outcome now makes it easier for employers to successfully appeal against enforcement notices. Here’s what you need to know…
Being Served with a Notice
When you receive a visit from an HSE inspector to your business or site, if they don’t like what they find, then you might be issued with an enforcement notice.
This could either be an improvement notice- requiring certain actions to be taken within a specified time scale (say 30 days for example), or it could be a Prohibition notice – which requires a certain activity to be stopped immedialty until it’s fixed.
Either of these notices can tarnish your company name. They’re publicised on the HSE website and are available within public searches for several years. You may well have to declare them to your insurers, any contractor accreditation schemes you are a member of and also larger clients, etc.
This can obviously have a knock on effect on future business for you, and therefore its worth doing what you can to avoid having such a notice on your record in the first place.
A Success Story
If you’re given an enforcement notice by a HSE Inspector and don’t think that it is warranted, then there’s an appeals procedure. This procedure gives you the opportunity to present your evidence to an employment tribunal which decides whether the notice should remain in force or be stopped.
This is where oil exploration company Chevron found itself in back in 2013. Chevron was served with a prohibition notice when an HSE Inspector raised concerns about the structural safety of a corroded stairway on an offshore platform.
Following the visit, Chevron commissioned an expert to inspect and test the metal structure. This confirmed that it was indeed strong enough for the purpose, in fact it even passed a British Standard strength test! At the employment tribunal Chevron presented the expert evidence, and as a result the enforcement notice was overturned.
The HSE decided to appeal against the judgement at the Supreme Court in the case of ‘HM Inspector of Health and Safety v Chevron North Sea Ltd 2018’, where it argued that courts should not use hindsight in judging whether a notice was justified.
However, the Supreme Court found against the HSE and upheld the decision. It found that the court was entitled to take into account any relevant evidence, regardless of whether it was available to the inspector when the notice was served.
In summing up, the Judge presiding over the case stated that Inspectors should continue to serve notices based on the information to hand as it would be impractical for them to wait for a full investigation – and therefore a successful appeal should not be taken as implied criticism of the inspector.
How does This Help You?
The company presented technical evidence at an appeal hearing that was not available to the inspector at the time of his visit. As a result, the prohibition notice was stopped.
It’s obvious that a HSE Inspector won’t want to serve enforcement notices which are then overruled upon a successful appeal – and so if you find yourself facing potential enforcement action for something which you don’t feel is a hazard, tell the Inspector that if they issue the notice, you’ll appeal against it immediately and commission an expert report. This might well be enough to put them off, but you could also try and buy yourself some time by suggesting that they wait for the outcome of the report before they issue the notice.
Appoint Lighthouse As Your Health & Safety Competent Person
The competent person role does not have to be fulfilled internally within every company. You can, therefore, outsource the appointment to a contractor or consultancy with the necessary qualifications and experience.