Shiva Ltd v Sharon Boyd (One of HM Inspectors of Health and Safety)
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 24 February 2021 |
| Neutral Citation | [2021] EWHC 371 (Admin) |
| Docket Number | Case No: CO/15/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2021 |
[2021] EWHC 371 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL UNDER SECTION 11 OF THE TRIBUNALS
AND INQUIRIES ACT 1992 FROM THE EMPLOYMENT TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howll QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/15/2021
Mr Russell Gray, one of its directors, for the Appellant
Mr Gordon Menzies (instructed by Helen Wood, Health and Safety Executive) for the Respondent
Hearing date: 11 February 2021
John Howell QC:
These are my reasons for dismissing an appeal brought by Shiva Limited under section 11 of the Tribunals and Inquiries Act 1992 against two decisions of Employment Judge Truscott QC. I dismissed the appeal at the end of the hearing, stating that I would give my reasons later.
At the hearing, with my permission, Mr Russell Gray (who is a director of, and the company secretary and the largest shareholder in, the Appellant) made submissions on its behalf. He also relied on a skeleton argument provided for the company by Mr Adam Ohringer. Mr Gordon Menzies appeared on behalf of the Respondent. I am grateful to all of them for their assistance.
BACKGROUND
In his first decision, dated November 10 2020, Employment Judge Truscott (“ the Judge”) refused a stay in the appeals brought by the Appellant against two prohibition notices issued by the Respondent under section 22 of the Health and Safety at Work etc. Act 1974 (“ the 1974 Act”) in relation to activities carried on by that company. In the second decision impugned, dated December 9 2020, the Judge refused the Appellant's application for a reconsideration of his order refusing to grant a stay.
The two prohibition notices were issued on February 25 2019. They concerned the Appellant's refurbishment work at its building at 55 Bermondsey Street in London. The notices were issued on the basis that the Appellant's activities involved a “risk of serious personal injury” from facade refurbishment work at the site. The first notice prohibited all work associated with a suspended cradle fabricated by the Appellant which gave access to working areas on the facade. The risk it posed was said to be that persons were liable to fall a distance causing personal injury or to be struck by a work platform in the event of a collapse of the structure. The second notice prohibited the raising or lowering of the work platform and the assembly and disassembly of the support structure from the roof. The risks posed were said to be that “working close to an unprotected edge and on or about a cantilevered support frame may result in falls likely to cause death or serious injury”.
The Appellant decided to appeal to the Employment Tribunal against the two prohibition notices under section 24 of the 1974 Act. Such an appeal does not automatically suspend the operation of any such notice. Its operation will only be suspended if the Tribunal so directs on the appellant's application. On such an appeal, however, an appellant bears no onus of proof: it is for the respondent to show on the balance of probability inter alia that there was a risk of serious personal injury: see Readmans Limited v Leeds City Council [1992] COD 419. The Tribunal is entitled on such an appeal to have regard to any evidence, whether or not it was available to the inspector who issued the notice, which assists it in ascertaining what the risk (if any) in fact was: see HM Inspector of Health and Safety v Chevron North Sea Limited [2018] UKSC 7, [2018] 1 WLR 964.
A preliminary hearing was held by the Employment Tribunal on January 30 2020. The hearing of the appeals was then listed for five days starting on February 22 2021.
On August 5 2020 the Health and Safety Executive notified the Appellant of its intention to issue criminal proceedings for offences against it and Mr Russell Gray, its Managing Director. The potential allegations against the Appellant are that it failed to comply with the prohibition notices and failed to comply with the duties imposed by sections 2(1) and 3(1) of the 1974 Act, provisions which are designed to protect the health, safety and welfare of an employer's workers and the health and safety of others. Mr Gray was also informed that the Executive intended to being a prosecution against him for an offence in connection with the Appellant's failure to discharge its duty under section 3(1) of the 1974 Act. No such prosecutions have yet been begun. But Mr Gray told me that the facts in respect of the appeals to the Employment Tribunal and in any criminal prosecution would essentially be the same.
By the time of the hearing before the Judge the Appellant had made substantial voluntary disclosure of documents relating to its work activities, including a method statement, certificate and photographs and it had put forward its version of what happened when the inspector visited its premises. The Respondent had also provided a report by its expert, Mr Rickard, who would not available to give evidence if the scheduled hearing did not go ahead, identifying various deficiencies in what had taken place at the site at the relevant time.
THE DECISIONS THE SUBJECT OF THIS APPEAL
The basis of the application for a stay before the Judge was that criminal proceedings were intended that arose out of the same facts as were in issue in the appeals. The Appellant contended that any further steps in its appeals, including disclosure of any evidence that it might wish to adduce to show that there had in fact been no risk of serious personal injury, would prejudice it in relation to the potential criminal proceedings and that, in the circumstances, given the extent of such prejudice and the absence of any prejudice to the Respondent, a stay was justified.
The Judge identified the issue on the application as being whether the Appellant had shown that there would be a real risk of substantial prejudice which may lead to injustice if the stay sought was refused.
The Judge found that the Appellant had not identified any specific prejudice that it would suffer if the stay was refused. He stated that he was unable to follow the argument that there was material to show there was no risk to health and safety in the appeal, but which would show that there was any such risk in any criminal proceedings. He considered that it was unlikely that the appeal proceedings were being used as a fishing expedition by the Respondent (as had been argued), given the nature of the appeal in the Employment Tribunal and given that, in any event, an inspector has power to require documents to be produced and questions answered under section 20 of the 1974 Act. The Judge considered that the Appellant's case in both proceedings was likely to be that there was no risk to health and safety, so that any positive case that it wanted to make would be exculpatory and that, if it had incriminatory material, it did not need to present it as part of its appeals. There was in any event no real risk of self-incrimination as the Appellant need not present any evidence given that the burden in the appeals was on the Respondent and the Appellant could require the Respondent to prove her case.
The Judge also found that not granting the stay would avoid the risk of the “inconsistency” which would occur if a criminal conviction for contravention of a notice were to be followed by cancellation of the prohibition notices by the Tribunal (something which he thought was an “important consideration”), whereas the Employment Tribunal's decision would not bind the Magistrates Court.
Had there been a real risk of serious prejudice, however, the Judge would nonetheless have refused a stay. In his view the criminal court would have adequate power to secure fairness by use of its powers under section 78 of Police and Criminal Evidence Act 1984.
APPELLANT'S CASE ON THIS APPEAL
The Appellant contends that the Tribunal's decision refusing to stay the appeal proceedings was wrong in law, unfair and in breach of the Appellant's fundamental rights.
Mr Gray submitted, adopting the analysis in the skeleton argument, that the decision on the granting of a stay was not a mere case management decision but one engaging the Appellant's fundamental rights. He identified those rights as being the right not to incriminate oneself, the right to silence and the right of the accused to know the case in criminal proceedings it has to meet before disclosing any defence to be made in response. Accordingly, so he submitted, this court's task does not involve it simply reviewing the exercise of the Employment Tribunal's discretion. This court must itself consider whether refusing the stay was fair. Its function is not merely to review the reasonableness of the decision-maker's judgment of what fairness requires: see R v Chance ex p Smith [1995] BCC 1095 at p1100g and R (Osborn) v Parole Board [2013] UKSC 61, [2014] AC 1115 (“ Osborn”) at [65].
In the Appellant's skeleton that Mr Gray adopted, it was submitted that the question is whether justice requires a stay having regard to any criminal proceedings, taking account of a defendant's right to silence in a criminal case: Jefferson v Batcha [1979] 1 WLR 898, p904. A risk of prejudice to a defendant in those proceedings will not necessarily be decisive but will lean heavily in favour of a stay: Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324, [2008] CP Rep 13, at [31].
Mr Gray further...
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