The first word in Enforcement Notices

Last June the Court of Appeal handed down judgment in the Rotary Yorkshire case. The judgment was easily missed as it received little publicity. Statutory enforcement notices (prohibition and improvement notices) are commonly encountered by busy health & safety practitioners. Health & Safety Inspectors are well versed in their utility. A large proportion of cases that reach trial in the Crown Court feature a notice with a schedule appended to it. Mindful of the commonplace nature of the notices in many cases it is perhaps unusual that there was until the hearing of this case no Court of Appeal authority on the correct approach that the courts should take with Health & Safety enforcement notices.

The Issuing Of An Enforcement Notice

• 22 HSWA 1974 sets out the power an inspector has to serve a prohibition notice. The ambit of the provision is wide extending to any activity which is under the control of any person, “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. Under s. 22 an inspector may also serve a notice if he believes that an activity involves a risk of serious physical harm.

An inspector may serve a prohibition notice if he is of the opinion that such an activity is being carried on which does, or will, involve a risk of serious injury. There is no appellate authority for the proposition that the risk of harm need not be an immediate risk of harm, however, if one takes the normal meaning of risk to be an exposure to danger then any distinction between the two perhaps disappears to the vanishing point.

Notices as a matter of practical exposition are often drafted extempore. An inspector does not normally wait to return to an office before writing up a notice. The content of a notice is not required to be an exhaustive recitation of all substandard practice extant at the time of a site visit.

Provided that an inspector forms an opinion that there is a risk of serious personal injury, he need not be of the opinion that a contravention of a statutory provision has occurred, or will occur.

The actual terms of a prohibition notice should not include guidance on good practice, or other advice, or other advice that goes beyond the duty imposed by any particular provision in issue. However, inspectors will normally, wish to provide assistance to those duty holders that are amenable to receive it.

Appealing The Notice In The Employment Tribunal

Appeals against notices issued by an inspector are for historical reasons heard in the Employment Tribunal.

S 24(2) HSWA 1974 provides for the disposals open to an Employment Tribunal upon determining an appeal. The sub section provides as follows:

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]^[2] ; 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.

The extent to which a tribunal may cancel, affirm or modify a notice as it thinks fit is unclear on the authorities. There is no authoritative or unifying judgment on the scope of the provision.

Employment Tribunal Appeal; Burden Of Proof

Notwithstanding that an appeal is a cause instigated by an appellant it is a well established practice for the respondent to present their case first, Readmans v Leeds City Council [1992]^[3]. Readmans constitutes one of a triumvirate^[4] of pre Rotary Yorkshire cases in this area of law that adopted that approach. As Roch J. stated the burden of proof in appeals against a prohibition notice should be no different from that in criminal proceedings. It follows it is for the HSE to show, on the balance of probabilities, that there was a risk to health & safety. If that can be shown it is then for the duty holder to prove that he had done all that was reasonably practicable. An appeal against a prohibition notice is not an appeal in its true sense; it is in effect a de novo hearing more akin to a civil trial.

The Conventional Procedure Adopted On Appeal To The Employment Tribunal

The standard approach by the tribunal is to ask two tests in the following order: Firstly, did the inspector genuinely hold the view held in the notice, and, secondly, if so did the activities complained of involve a breach of a statutory provision or a risk of serious personal injury. The first test was ruled upon in Railtrack & Smallwood [2001]^[5] and Chillcott & Thermal Transfer Limited [2009]^[6].

The First Test, The Foremans Test; Did The Inspector Genuinely Hold The Opinion?

Under a S22 appeal the burden of proof is on the inspector, on the balance of probabilities, to show that he held the view that there was a serious risk to the health & safety of others. The inspector, in issuing the notice must be acting on reasonable grounds. This test was first adopted in the unreported Employment Tribunal case of Foremans Relocatable Building Systems v Fuller^[7]. The same general approach was closely followed and amplified in the case of Railtrack & Smallwood [2001]^[8].

In Railtrack Sullivan J. stated that the courts ruling ought not to be considered as endorsing the Foreman test. The judge plainly had some difficulty in reconciling the greater ambit of S 22 HSWA1974, namely the power to amend, with a strict application of the Foreman’s test. As a caveat to following the general Foreman’s approach the judge indicated that the tribunal must have regard to an inspector’s experience.

In Chilcott the ratio decidendi was in identical terms to that in Railtrack; the court once again ruled that the first step to be taken by the tribunal was to ascertain the inspector’s opinion having regard to the inspector’s experience. Charles J. further stated that the tribunal had power nevertheless to form an independent view based on the facts of each case. The case provides authority for the de novo nature of such appeals and the courts’ statutory power to affirm and modify on appeal.

The Second Test; Did The Activities Complained Of Involve A Breach Of A Statutory Provision Or A Risk Of Serious Personal Injury?

In Chilcott Charles J. emphasised that the focus of any appeal was on the activity being carried out at the time that the notice was issued and whether as a matter of fact the activities subject to the appeal gave rise to a breach of a statutory provision or a risk to health & safety.

It is one of those great peculiarities of this area of practice, antithetically, that a case can be listed in the employment tribunal as well as the Crown Court. Two parallel courses with different rules of evidence, different rules of procedure and different standards of proof.

Appealing An Employment Tribunal Determination

Appeals from an employment tribunal are heard in the Administrative Court as of right pursuant to CPR Part 52.19(1). As parties to proceedings before the Employment Tribunal in matters that are not of an employment nature. This same route of appeal is taken whether the appeal relates to prohibition or improvement notices issued under the Health & Safety at Work Act 1974. Appellants may appeal to the High Court if they are “dissatisfied in point of law with the decision of the tribunal.” The statutory foundation for the jurisdiction of the High Court is section 11 of the Tribunals and Inquiries Act 1992. Appeals to the High Court are determined by a High Court Judge sitting alone. However, as shall become clear, a puisne judge under s.11 is restrained from considering the facts of the case, or more accurately restrained from considering the facts of an appeal except to the extent required to do so to determine the legal test^[9]. In other words it is not open to a judge sitting in the administrative court to make fresh findings of fact or to substitute his findings of fact for those already established.

In keeping with the general practice of the Administrative Court, a judge may hand down judgment on a case and then make any order that would have been open to the Employment Tribunal to make in order to determine the case. If the case warrants it, the Judge may modify, amend or cancel a notice and immediately deal with costs and costs below. However, for practical purposes cases are sometimes remitted back to the Employment Tribunal.

Appeals From The Administrative Court To The Court Of Appeal

An application for permission to appeal from a decision of the High Court which was itself an appeal is a second appeal and must be made to the Court of Appeal. An application to make a second appeal must identify the grounds of the appeal, the important point of principle or practice or compelling reasons which are said to justify the grant of permission to appeal. The Bowman Report recommended that one level of appeal should be the norm. This principle reflects the need for certainty, reasonable expense and proportionality. The report considered that when there had already been an appeal to some courts below the Court of Appeal, further appeal should only be allowed in special circumstances. This recommendation was placed on a statutory footing in s.55(1) of the Access to Justice Act 1999, which provides:

“Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that:

• The appeal would raise an important point of principle or practice, or
• There are some other compelling reason for the Court of Appeal to hear it.”

This provision is substantially repeated in C.P.R. r.52.13.

The important question as to what constitutes an important point of principle or practice was addressed in Uphill v BRB (Residuary) Ltd (2005)^[10] where it was said that appeals addressing the meaning and scope of either principle or practice would only arise where they had not been determined by a higher court.

The second criterion for granting permission for a second appeal under both the Act and the CPR is that there is some other compelling reason for the Court of Appeal to hear the appeal. This point was also addressed by Dyson L.J. when giving the judgment of the court in Uphill v BRB (Residuary) Ltd (2005) at paragraph 24 where the judge elucidated the meaning of the phrase:

1. “A Good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it formed the view that the prospects of success are very high…
2. …the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal…
3. there may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal and unfair…”

Notwithstanding the guidance given in Uphill the authority has not been allowed to ossify into rule. The Court of Appeal have demonstrated over time that the court’s interpretation of r.52.13, is dependent to some extent on the provenance of the proposed appeal, so much was said in Cramp v Hastings BC [2005]^[11]. Also in Esure Insurance Ltd v Direct Line Insurance Plc. [2008]^[12] the complexity of the case and the real prospect of showing that the judge had incorrectly exercised his appellate function were held to constitute “compelling reasons” for permitting the second appeal^[13]. It was essentially this basis upon which the HSE sought to appeal the Administrative Courts decision in the Rotary Yorkshire case.

The Rotary Yorkshire Case

The appellant inspector appealed against the decision of the Administrative Court^[14] quashing a prohibition notice that she had served on the respondent construction company under the Health & Safety at Work etc. Act 1974 s.22.

Inspectors had attended a large construction site where the company was responsible for installing mechanical and electrical plant. They had entered a high-voltage room and found exposed conductors, contact with or proximity to which, if they were live, could have caused death or serious injury. They served a prohibition notice on the company on the basis that it had allowed access to the room, and that although the conductors appeared to be dead, it was not clear whether they were. The next day a test was conducted by an authorised person. The conductors were proved to be dead, and to have been so the day before. The prohibition was lifted. The company argued that the prohibition was premature and the inspectors should have awaited the outcome of the test and ensured safety in the meantime by a direction under s.20(2)(e) to lock the room concerned. The company appealed to an employment tribunal under s.24(2) of the 1974 Act. The tribunal dismissed the appeal but modified the notice from saying that the conductors “can be energised and made live” to “are exposed and cannot be proved dead”. The company appealed to the Administrative Court, which quashed the notice, finding that the service of the notice had not been the only means of dealing with the situation, that a prohibition notice should only be issued if clearly needed because its existence on the register against a company could produce a disadvantage, and that the inspectors could have directed under s.20(2)(e) that the relevant area remained undisturbed while testing took place.

The inspector submitted that the judge had exceeded his jurisdiction on an appeal brought under s.11 and sch.1 para.16 Tribunals and Inquiries Act 1992, which was limited to matters of law, by substituting his own view on the merits; that he had been wrong to judge the enforcement decision with hindsight; and that he had erred in holding that the use of the power granted by s.20(2)(e) could be an acceptable alternative to a prohibition notice where the inspectors had concluded that there was a risk of serious personal injury. A second appeal argument was that the judge ought not to have taken into account that registration of a prohibition notice against a company could be a commercial disadvantage to it.

In allowing the appeal the Court held that as there was no Court of Appeal authority on the scope of an appeal under s.11 of the 1992 Act, or of an appeal against a prohibition notice under s.24 (2) of the 1974 Act the approach should be the same as it would be on any statutory appeal on a point of law. An appellant had to show that the employment tribunal had made a material error of law, a misconstruction of a relevant statutory provision, a finding of fact not rationally supportable on the evidence, or a procedural error that had led to unfairness. The judge had not found an error of law in the tribunal’s decision. The essence of his conclusion was that the tribunal should have decided that the situation could have been dealt with by less draconian means. That was a view of the factual merits. Alternatively, if it could be said that the judge rejected the tribunal’s view that the power under s.20 (2)(e) was to effect a temporary measure to preserve the state of premises while an investigation was carried out under s.20 (2)(d), then that decision was erroneous. Section 20 (2)(e) was clearly an ancillary power. Therefore, it did not take effect where an inspector had already concluded that within s.22 (2) there was a risk of serious personal injury, which was the position in the instant situation. Unlike s.11, s.24 (2) of the 1974 Act conferred a right of appeal on the facts and not just the law. In deciding what facts the tribunal had to consider, the decision in Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 (Admin) was correct: the question for an inspector was whether there was a risk of serious personal injury, on the facts known to him at the time of the decision. He was concerned with the prevention of injury at that time. The tribunal should only be concerned with whether the facts known, or which ought to have been known, justified the inspector’s action, Chilcott approved^[15]. Section 24 was not to be construed so that it might appear to call into question the propriety of a notice which it might well have been the inspector’s duty to issue at the time^[16]. Any commercial disadvantage to a company caused by the registration of a prohibition notice was irrelevant^[17].

Conclusions

A judge had erred in substituting his own view on the merits of a health & safety inspector’s decision to serve a prohibition notice on a company where it was unclear whether exposed electrical conductors on a construction site were live. The judge had exceeded his jurisdiction on an appeal brought under the Tribunals and Inquiries Act 1992 s.11 and sch.1 para.16, which was limited to matters of law only. The approach in such an appeal should be the same as it would be on any statutory appeal on a point of law.

Most importantly in terms of the practical effect on a client if issues are to be raised as to the facts of a case or the framing of a notice issued in a case, the proper – and arguably on this case – only forum to take issue in will be the employment tribunal. It is too late to challenge or criticise the contents of a notice when the case is being prosecuted if no attempt was ever made appeal or modify the notice in the Employment Tribunal.

For public policy reasons whether a company is commercially disadvantaged or not is not a proper consideration on appeal of a notice, in either the Employment Tribunal, Administrative Court or the Court of Appeal.

From a practical perspective operating companies and contractors should ensure that they have a clear policy as to where they will allow site visitors access before any visitors, inspectors included, are granted access to a site or a part of a site. Had such a procedure been in place in this case, and had that policy been in force, it is unlikely the notice would ever have been served.

• ^[1] For reasons that pre date the 1972 Robens Report dating back to the time when the various Factories Acts governed this area of the law.
• ^[2] Words substituted by Employment Rights (Dispute Resolution) Act 1998 c. 8 Pt I s.1(2) (August 1, 1998).
• ^[3] Readmans v Leeds City Council [1992] COD 419.
• ^[4] Those being Readmans, Railtrack v Smallwood [2001] ICR 714 and Chilcott v Thermal Transfer Limited [2009] EWHC 2086.
• ^[5] Railtrack v Smallwood [2001] ICR 714.
• ^[6] Chilcott v Thermal Transfer Limited [2009] EWHC 2086.
• ^[7] ET-3200213/99/S.
• ^[8] An Administrative Court Decision following the Ladbrook Grove Railway disaster.
• ^[9] A situation which is on a par the vast majority of judicial review cases.
• ^[10] Uphill v BRB (Residuary) Ltd (2005) EWCA 60 at [18].
• ^[11] Cramp v Hastings BC [2005] EWCA Civ 1005 at [64].
• ^[12] Esure Insurance Ltd v Direct Line Insurance Plc. [2008] EWCA Civ 842.
• ^[13] As to which see Arden L.J. at [65].
• ^[14] Rotary Yorkshire Ltd v Hague (Health & Safety Inspector) [2014] EWHC 2126 (Admin).
• ^[15] R (on the application of Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011] EWCA Civ 31, [2011] 3 All E.R. 579, Railtrack Plc v Smallwood [2001] EWHC Admin 78, [2001] I.C.R. 714 and MWH UK Ltd v Wise (Inspector of Health & Safety) [2014] EWHC 427 (Admin), [2014] A.C.D. 96 were all considered.
• ^[16] See [21-29, 31-32, 34] of judgment.
• ^[17] See [36-37] of the judgment.