Christopher Wilcox (one of HM Inspectors of Health & Safety) v Survey Roofing Group Ltd
| Jurisdiction | England & Wales |
| Judge | Ms Geraldine Clark |
| Judgment Date | 19 April 2016 |
| Neutral Citation | [2016] EWHC 868 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/0089/2016 |
| Date | 19 April 2016 |
[2016] EWHC 868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE CARDIFF EMPLOYMENT TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Geraldine Clark
(Sitting as a Deputy High Court Judge)
Case No: CO/0089/2016
Mr Cyril Adjei instructed by the Health and Safety Executive for the Appellant
Mr Gerard Heap instructed by Lupton Fawcett Denison Till for the Respondent
Hearing date: 17 March 2016
Introduction
This is an appeal by Christopher Wilcox, one of Her Majesty's Health and Safety Inspectors ("the Inspector"), under section 11 of the Tribunals and Inquiries Act 1992, against the decision of an employment tribunal dated 17 December 2015, on an appeal brought by Survey Roofing Group Limited ("Survey Roofing") under section 24 of the Health and Safety at Work Act 1974 ("HSWA").
The Tribunal decided to cancel a prohibition notice issued by the Inspector under section 22 of HSWA on 3 March 2015 which had prohibited Survey Roofing from carrying out further roofing works at the premises of a client until it had remedied the matters set out in the notice.
The Facts
Survey Roofing had contracted with Screwfix Ltd to carry out maintenance works to the roof at the Screwfix store at Berse Road, Wrexham which included numerous fragile roof lights. Survey Roofing engaged self-employed contractors Mr James Phillips and Mr Keith Tyrer to carry out the work. Work began on 26 February 2015 there was then a break of a few days until work was due to recommence on 3 March 2015.
That day the Inspector made an unannounced visit to the premises. When he arrived at about 9:15 am the contractors had just arrived and had not yet started work on the roof. The Inspector climbed a scaffold tower in order to view the roof and he was given some information about the method of work by Mr Phillips. This method involved covering the rooflights near when the contractors were working with plywood boards and moving the boards across the roof as work progressed by "leapfrogging" them so that the rooflights nearest the area being worked on were always covered by the boards. The Inspector requested and was given a copy of the written method of work contained in Survey Roofing's Risk Assessment and Method Statement ("RAMS"). The purpose of the RAMS was to explain to the contractors how the work should safely be carried out. The relevant part of the RAMS provided:
"Before any further roofing works are allowed to be carried out on a roof where fragile roof lights are present (e.g. Georgian wired glass, PVC, thin fibreglass) the existing roof lights are to be covered with 18mm plywood secured to their frames.
Operators carrying out these tasks will have cut the plywood to size first then approach the roof light with the board held between themselves and the roof light thereby negating any chance of them falling through.
If operatives must work within areas closely surrounded by hazardous roof lights whilst carrying out these works, then full harness and lanyards must be used as fall protection measures. Also refer to "the safety harness use" risk assessment below."
The Inspector also received a telephone call from Mr Julian Byrd, a Director of In-Line Safety Ltd, Survey Roofing's Health and Safety consultants, which had compiled the RAMS.
The Inspector was not satisfied with the safety arrangements for the work and at 10:24 am on 3 March 2015 he issued a prohibition notice ("the Notice") under section 22 of HSWA. The material part of section 22 provides:
"(2) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as "a prohibition notice").
(3) A prohibition notice shall—
(a) state that the inspector is of the said opinion;
(b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risk;
(c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and
(d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.
(4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect—
(a) at the end of the period specified in the notice; or
(b) if the notice so declares, immediately."
The Notice stated that Inspector was of the opinion that the roof works involved a risk of serious personal injury because persons were liable to fall a distance likely to cause injury through the rooflights and that this involved contraventions of Section 2(1) and 3(1) of HSWA and Regulations 6(3) and 9(2) of the Work at Height Regulations 2005 ("the 2005 Regulations"):
"because suitable and sufficient measures had not been taken, so far as is reasonably practicable, to prevent persons falling through the fragile roof lights during work on the roof adjacent to roof lights and/or the passage of persons across the roof."
The Regulatory Regime
It is convenient here to set out the applicable regulatory provisions which lay behind the Inspector's power to issue the Notice.
Section 1 of the Health and Safety at Work Act 1974 ("HSWA") sets out the objects of that act and the secondary legislation made under it:
" 1. Preliminary
(1) The provisions of this Part shall have effect with a view to—
(a) securing the health, safety and welfare of persons at work;
(b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work;"
By section 2(1) HSWA, Parliament placed a duty on employers to ensure, so far as reasonably practicable the health, safety and welfare of all of its employees:
" 2. General duties of employers to their employees
(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
(2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular—
(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
(d) so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
(e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work."
Section 3(1) places a duty on employers regarding the health and safety of members of the public other than their employees:
" 3. General duties of employers and self-employed persons to persons other than their employees
(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, as far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety."
The Work at Height Regulations 2005 passed under the HSWA provide:
" 6. Avoidance of risks from work at height
(1) In identifying the measures required by this regulation, every employer shall take account of a risk assessment under regulation 3 of the Management Regulations.
(2) Every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height.
(3) Where work is carried out at height, every employer shall take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury.
(4) The measures required by paragraph (3) shall include—
(a) … his ensuring that the work is carried out—
(i) from an existing place of work; or
(ii) (in the case of obtaining access or egress) using an existing means,
which complies with Schedule 1, where it is reasonably practicable to carry it out safely and under appropriate ergonomic conditions; and
(b) where it is not reasonably practicable for the work to be carried out in accordance with sub-paragraph (a), his providing sufficient work equipment for preventing, so...
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