HM Inspector of Health and Safety v Chevron North Sea Ltd
| Jurisdiction | Scotland |
| Judge | Lady Black,Lord Mance,Lord Sumption,Lord Reed,Lord Hodge |
| Judgment Date | 08 February 2018 |
| Neutral Citation | [2018] UKSC 7 |
| Docket Number | No 8 |
| Court | Supreme Court (Scotland) |
| Date | 08 February 2018 |
[2018] UKSC 7
Lord Mance, Deputy President
Lord Sumption
Lord Reed
Lord Hodge
Lady Black
Appellant
Andrew R W Young QC
Ian Wright
(Instructed by Anderson Strathern LLP)
Respondent
Peter Gray QC
Barry Smith
(Instructed by Clyde & Co)
Heard on 14 December 2017
( with whom Lord Mance, Lord Sumption, Lord Reed and Lord Hodge agree)
Chevron North Sea Ltd operates an offshore installation in the North Sea (“the installation”). In April 2013, the installation was inspected by Mr Conner in his capacity as one of Her Majesty's Inspectors of Health and Safety. Mr Conner was accompanied by three colleagues with specialist expertise of particular relevance to the inspection. A vital part of the installation is the helideck, the principal means of reaching the installation being by helicopter. The inspectors examined the condition of the stairways and stagings providing access to the helideck and formed the view that corrosion had rendered them unsafe so that there was a risk of serious personal injury from falling through them. Mr Conner therefore served a prohibition notice on Chevron under section 22 of the Health and Safety at Work etc Act 1974 (“the 1974 Act”). Chevron appealed against the prohibition notice to an employment tribunal under section 24 of the 1974 Act. The question for us to determine is what approach a tribunal hearing such an appeal should take. In particular, in reaching its decision whether to affirm, modify or cancel the notice, is the tribunal confined, as the appellant contends, to the material which was, or could reasonably have been, known to the inspector at the time the notice was served, or can it, as the respondent contends and the First Division of the Inner House of the Court of Session held, take into account additional evidence which has since become available?
Section 22 of the 1974 Act provides:
“ 22. Prohibition notices
(1) This section applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.
(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.”
Section 24 provides:
“ 24. Appeal against improvement or prohibition notice
(1) In this section ‘a notice’ means an improvement notice or a prohibition notice.
(2) A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.
(3) Where an appeal under this section is brought against a notice within the period allowed under the preceding subsection, then —
(a) in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal;
(b) in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).
(4) One or more assessors may be appointed for the purposes of any proceedings brought before an employment tribunal under this section.”
Also material to a consideration of the question at issue in this appeal is section 33 which provides:
“ 33. Offences
(1) It is an offence for a person —
…
(g) to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice (including any such notice as modified on appeal) …”
The prohibition notice served on Chevron stated that the inspector was of the opinion that there was a risk of serious personal injury because:
“The steel grating of the stagings and the stairway treads are in a weakened condition because of corrosion which compromises safe evacuation.”
Having launched an appeal in May 2013, Chevron arranged in July 2013 for the metalwork which had been of concern to the inspector to be removed from the installation and tested. The results of the testing were set out in an expert report dated March 2014. In short, with the exception of a panel which had been damaged during the inspection by an inspector striking it with a fire fighting axe in order to test the extent to which it was corroded, all the metalwork passed the British Standard strength test, and there was no risk of personnel being injured by falling through it. Without the damage, the damaged panel may well also have passed the test, but the damage made it impossible to determine its safety.
Chevron sought to rely upon the expert report as part of their appeal to the tribunal. The inspector opposed that on the basis that the tribunal must focus on the information that was available, or ought reasonably to have been available, to an inspector at the time of the service of the notice. The results of the expert testing could not have been available to the inspector when he decided to serve the notice and so, in his submission, no regard could be had to them by the tribunal.
The tribunal prudently approached the matter in two alternative ways. First, it looked at the position on the basis of the information that was or ought to have been available to the inspector, without having regard to the subsequent testing and analysis. On that basis, it would have affirmed the prohibition notice, albeit in a modified form. It then looked at the matter again, taking into account the expert evidence that came into existence later. Approaching things in that way, it concluded that at the time of the service of the notice, there was not, in fact, a risk of serious personal injury. As it decided that it was entitled to look at the later material, it cancelled the notice.
The inspector appealed unsuccessfully to the First Division of the Inner House against both of the alternative conclusions of the tribunal. I can confine my attention to the second of the two alternatives, in relation to which the Inner House held that the tribunal had been correct to have regard to the subsequent testing and analysis, and entitled to accept that evidence. In the light of the fact that the Court of Appeal in England and Wales had taken a different view on the proper approach to an appeal under section 24 of the 1974 Act, in the case of Hague (One of Her Majesty's Inspectors of Health and Safety) v Rotary Yorkshire Ltd [2015] EWCA Civ 696, the Inner House gave the inspector leave to appeal to this court on the point.
The framework of the relevant provisions of the 1974 Act
A prohibition notice directs that the activities to which it relates shall not be carried on unless the matters that, in the opinion of the inspector, gave rise to the risk of serious personal injury have been remedied (section 22(3)(d)). The notice can be drawn up to take effect immediately or at the end of a specified period (section 22(4)). Where the notice is not one with immediate effect, section 23(5) enables an inspector to withdraw it at any time before the date on which it is to take effect. There is no provision for an immediate notice to be withdrawn; it appears that the only way, under the statutory scheme, in which such a notice can be dislodged is by an appeal. A prohibition notice is not automatically suspended by an appeal. However, the appellant may apply to the tribunal for a direction suspending it from the date of the direction until the appeal is finally disposed of or withdrawn (section 24(3)). A public database of notices is kept by the Health and Safety Executive. Notices are entered on the database by virtue of statutory requirements in some cases, and otherwise as a matter of policy. However, registration is deferred to allow for the appeal process and, in the event of a successful appeal, does not take place.
It is an offence to contravene a prohibition imposed by a prohibition notice (section 33 of the 1974 Act). This applies in full force to activity during the appeal period except in...
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