Sarah Jane Hague (one of HM Inspectors of Health and Safety) v Rotary Yorkshire Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Tomlinson,Lord Justice Kitchin |
| Judgment Date | 11 June 2015 |
| Neutral Citation | [2015] EWCA Civ 696 |
| Docket Number | C1/2014/2479 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2015 |
[2015] EWCA Civ 696
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Lord Justice Tomlinson
Lord Justice Kitchin
C1/2014/2479
Mr Ian Wright (instructed by Legal Adviser's Office) appeared on behalf of the Appellant
Mr James Maxwell-Scott (instructed by DAC Beachcroft Claims Limited) appeared on behalf of the Respondent
This is an appeal with permission granted by Aikens LJ on 30 September 2014 by Her Majesty's Inspector of Health and Safety against the decision of Collins J given in the Administrative Court on 4 July 2014.
Collins J allowed the appeal of Rotary Yorkshire Limited ("RYL") against the decision of an Employment Tribunal sent to the parties on 2 January 2014 to uphold a prohibition notice served by the Inspector on RYL on 13 December 2012. Collins J quashed the notice.
The prohibition notice was served under section 22 of the Health and Safety at Work etc Act 1974 ("HSWA"). As has been stated in one of the textbooks, Health and Safety Enforcement, the HSWA:
"… represented a watershed in the history of the regulation and enforcement of health and safety in the United Kingdom. HSE statistics apparently show that since the Act came into force there has been an 87 per cent reduction in the number of fatal injuries to employees at work and a 77 per cent reduction in reported non-fatal injuries. The details are available at www.HSE.gov.uk/statistics/history."
It is convenient at this stage to set out the material provisions in the HSWA. Section 22 appears in part 1 of the Act. Section 1(1) provides, in part:
"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 person at work against risks to health or safety arising out of or in connection with the activities of persons at work."
Then I may go to section 20:
"(1) Subject to the provisions of section 19 and this section, an inspector may, for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him, exercise the powers set out in subsection (2) below.
(2) The powers of an inspector referred to in the preceding subsection are the following, namely, … (d) to make such examination and investigation as may in any circumstances be necessary for the purpose mentioned in subsection (1) above;
(e) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything therein, shall be left undisturbed (whether generally or this particular respects) for as long as is reasonably necessary for the purpose of any examination or investigation under paragraph (d) above."
Then section 22:
"(22) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or as 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 should declares, immediately."
Section 24 creates a right of appeal against the prohibition notice and also against another measure called an improvement notice. Section 24(2) and (4) provide:
"(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.
(4) One or more assessors may be appointed for the purposes of any proceedings brought before the employment tribunal under this section."
There is a right of appeal from the decision of the Employment Tribunal not to the Employment Appeal Tribunal but to the High Court pursuant to section 11 in Schedule 1, paragraph 16 of the Tribunals and Inquiries Act 1992. Section 11(1) of that Act provides, in part:
"Subject to subsection (2), if any party to proceedings before any tribunal specified in paragraph … 16 … of Schedule 1 is dissatisfied in point of law with a decision of the Tribunal he may, according as rules of court may provide, either appeal from the tribunal to the High Court or require the tribunal to state and sign a case for the opinion of the High Court."
Paragraph 16 of schedule 1 specifies the employment tribunals Section 11(2) of the statute, disapplies section 11 in relation effectively to employment cases before the Employment Tribunals where appeal lies to the Employment Appeal Tribunal and is, of course, the general run of employment cases. Issues in this appeal essentially concern the legal nature of both appeal rights; that to the Tribunal and that to the High Court.
The facts of the case were dealt with very fully by the Employment Tribunal, which heard evidence over four days. As I understand it, there was no real dispute about the facts, certainly not the primary facts. The events in question took place at the Leeds Arena, a large construction site in Leeds, in December 2012. Collins J, helpfully, if I may say so, summarised the facts as follows at paragraphs 15 to 17:
"(15) In the High Voltage room there were four transformers. Two, identified as A and B, were being commissioned and the switches which served them were dead. The jointed cables that were exposed were at the rear of the structure containing three switches. Two in the middle and left were shown by the absence of a light at the front of the structure as dead, that on the right was shown to be live. The exposed conductors were at the rear of transformers A and B, both of which would be dead if the left-hand switch shown as dead was in truth dead. If it was not in fact dead, the danger of serious injury by contact with any exposed conductor is all too obvious.
(16) On entering the room the inspectors (there were three in all) found all the settings and the two locks on the left-hand switch to be in positions consistent with the exposed conductors being dead. Each padlock had its own key which was kept in a safe, the key to which was kept in another safe protected by a coded lock. Only three persons employed by the appellant had access to the keys and there was an elaborate process required to energise the left-hand switch so as to avoid any accidental energisation. Accidental or any improper energisation was a risk which the tribunal regarded as negligible.
(17) While it was the inspectors' belief that the conductors were dead, they could not be sure that they were and the appellant was unable to prove that they were. There should be have been a system in place overseen by a Senior Authorised Person whereby there was proof provided in the form of documentation that when the switch was in the off position the conductors were in fact dead. the tribunal accepted the evidence given by the appellant's Project Manager that the approach must be to assume live unless proved dead."
The appellant inspector issued an immediate prohibition notice. It stated that she was:
" … of the opinion that the following activities, namely any access to the high voltage (HV) AB income room other than to make the electrical systems safe which are being carried on by you at Leeds Arena construction site, Clay Pit Lane, Leeds LS2, involve a risk of serious personal injury and that the matters which give rise to the said risks are persons are liable to injury from an electric shock and that the said matters involve contravention of the following statutory provision, the Health and Safety at Work etc Act 1974, sections 2 and 3, Electricity at Work Regulations 1989, regulation 4.3, because you have not prevented access to conducting parts of the electrical system that can be energised and made live. The electrical system is high voltage and I hereby direct that the said activities shall not be carried on by you or under your control immediately unless the said contraventions and matters have been remedied."
On the following day, 14 December 2012, an authorised person, Mr Howard, engaged by RYL, established that the conductors were indeed dead and had been dead on 13 December 2012. That fact was, of course,...
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