February 13, 2018
Supreme Court Ruling Opens up Scope for H&S Appeals
Published on 8th February 2018 the Supreme Court ruled on an Appeal brought to them by the Health and Safety Executive which followed the overturning of a Prohibition Notice at an Employment Tribunal in May 2013.
The ruling allows for evidence, that wasn’t available to an HSE Inspector when serving either a Prohibition Notice or an Improvement Notice, to be brought to the attention of the Employment Tribunal at the time of the appeal.
The case centred around a corroded staircase on an offshore platform which an Inspector deemed to be an imminent danger, and served a Prohibition Notice on the platform operator preventing the use of the steps. The steps led to the Helicopter Pad which was an integral part of the day-to-day operation of the platform.
Having replaced the steps the platform operator had them tested and all were deemed to comply with relevant British Standard, despite the corrosion that had concerned the Inspector. The operators decided that it would be necessary to appeal the Prohibition Notice, despite having already replaced the steps. The Employment Tribunal deemed that the condition of the steps at the time the Prohibition Notice was served were indeed still in a safe condition, and cancelled the Notice.
The Health and Safety Executive appealed this decision to retain their Inspectors ability to take prompt action where they believe there is an imminent danger to safety or health.
The Judgement of the Supreme Court does not question that Inspectors should serve prohibition notices when they feel that an imminent risk to safety or health exists. However this ruling does allow for businesses to question that decision, based on evidence that the Inspector may not have been aware of at the time of his decision making.
In essence this ruling supports the logic and timeless nature of the Health and Safety at Work Act where Sections 22 and 24 allow HSE Inspectors to act on what they see in front of them, and take action as they see fit to prevent injury or ill health. However the ruling also allows for a business owner or operator to question that decision if they have reasonable cause.
Some may question why the platform operator decided to go to these lengths to have the Prohibition Notices lifted. But by appealing this notice the operators of the platform have removed this Notice from their record – and perhaps referenced in any future Notices.
From a business perspective it does provide clarity to both the HSE and other companies looking to appeal similar notices, and provide guidance as to what actions they could or should take.