21CC Group Ltd v T S Reeves and HM Inspector of Health and Safety: 4101412/2020
| Judgment Date | 23 September 2021 |
| Citation | 4101412/2020 |
| Date | 23 September 2021 |
| Published date | 08 October 2021 |
| Court | Employment Tribunal |
| Subject Matter | Health & Safety |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4101412/2020
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Held via CVP on 7, 8, 9 and 10 June 2021
Deliberations 5 July 2021
Employment Judge C McManus
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21CC Group Limited Appellant
Represented by:
Mr Andrew McGee
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Counsel
Thomas Stephen Reeves Respondent
HM Inspector of Health and Safety Represented by:
Mr Hugh J Olsen
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Advocate
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The Judgment of the Employment Tribunal is that the Improvement Notice serial
number P 20200219-TSR-1 issued to the Appellant on 19 February 2020 is
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cancelled.
REASONS
Background
1. The appellant appeals against the Prohibition Notice served on them by HM
Inspector of Health and Safety Thomas Stephen Reeves on 19 February
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2021. The respondent resists the appeal.
2. The appellant’s Grounds of Appeal were set out in their Consolidated Further
and Better Particulars of 14 May 2020 (JB45) as follows:-
“…. the conditions laid out in s22 of HWSA 1974 for the issue of a
prohibition notice were not met in this case in that:
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(a) there was no risk of serious injury arising from the activities
cited in the Notice and/or any inherent risk (if such existed) was
4101412/2020 Page 2
in any event controlled by appropriate measures or in
reasonably practicable way or was negligible.
(b) the activities cited in the Notice were not to be recommenced or
carried on; there were and are no reasonable grounds to
believe that those activities were or are likely to be carried on.
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Further, to the extent that the Tribunal is required to have regard
to the Respondent’s expertise, that expertise was, in the context
of the issuing of this Notice, limited, and the Respondent therefore
fell into error.
The Respondent relies on assertions in relation to what is said to
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be accepted practice (see, for example, [10a] and [34] in the
Respondent’s document). The Appellant will point to what is and
has in fact been industry-standard and safe accepted practice and
the HSE’s knowledge and acceptance of this.
For the avoidance of doubt, the Appellant does not accept that the
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activities which were the subject of the Notice involved a
contravention of either s2(1) HSWA 1974 or Regulation 26(1)(b)
and
(c) ER 2014. “
3. The respondent resists the appeal against the Prohibition Notice. The
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respondent’s skeleton argument set out their resistance on the following
grounds: -
“1. The Prohibition Notice P 20200219-TSR-1 dated 19/02/2020
[JB1] was issued correctly. The Respondent relies upon the
reasoning set out in the Respondent’s letter of 4 March 2020
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[JB3].
2. As stated in the letter, the Respondent relies upon the HSE
Guidance Document “Explosive Regulations 2014 – Guidance
on Regulations - Professional firework display operators”
[JB288] and in particular: -
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(i) paragraphs 44 and 45 [JB299]
4101412/2020 Page 3
“44 When storing or working on fireworks, the primary
initiating events that need to be considered are fire or the
accidental ignition of the fireworks by other means. The
principal hazards that need to be considered are the spread
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of fire, the propagation of any explosives event, and the
potential for persons to be struck by fireworks effects.
45 The safety measures taken should ensure that:
• the likelihood of an event involving fireworks is
minimised.
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• an event involving fireworks being worked on will not
communicate to fireworks in storage.
• people present on site will be able to evacuate before
the fireworks… become involved in any outbreak of
fire…
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(ii) paragraphs 85-91 [JB306-307] and in particular paragraph
89 [JB306].
“85. Storage buildings should be separated from production
buildings and other areas where fireworks are worked on or
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processed…
89. Fireworks should only be removed from their transport
packaging in an appropriate place. Normally, this will be in
a production building, a picking store, or another place
where an event involving the fireworks being handled will
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not communicate directly with fireworks in storage.”
(iii) Further the Respondent relies upon the HSE Guidance
Document L150 “Explosive Regulations 2014 Safety
Provisions Guidance on Regulations” [JB174] paragraph
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107 [JB198]
“107 The precautions are covered in detail in paragraphs
110-173. In summary they include ensuring that any place
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