Supreme Court upholds decision to allow subsequent evidence to challenge Prohibition Notice

On 8 February 2018 the Supreme Court upheld the Inner House of the Court of Session’s previous decision that evidence generated following the issuance of a Prohibition Notice can be used in support of challenging the Prohibition Notice. This follows the successful appeal by Chevron North Sea Ltd (Chevron) against a Prohibition Notice at an Employment Tribunal under section 24 of the Health & Safety at Work etc. Act 1974.

The Supreme Court chose to take a broader approach than simply the narrow wording of section 24 alone. When serving a notice, an inspector must be of the opinion that an employer is conducting activities that expose his workforce, and/or others, to the risk of serious personal injury. The inspector may have been fully justified in serving the notice, however the appeal process is not against his opinion. An appeal is against the notice itself, allowing the tribunal to consider the facts on which the notice is based, even if those facts were only evident after the service of the notice.

Lady Black, with whom all Judges agreed, was at pains to point out that this is not criticism of the inspector. Inspectors often need to reach a decision as a matter of urgency and without comprehensive information. A wide interpretation of section 24, should not be a deterrent factor to inspectors in issuing Prohibition Notices. In fact, it should allow the inspector to issue Prohibition Notices more confidently in the knowledge that if the facts retrospectively show that there was no material risk, the position can be corrected on appeal.

The effectiveness of a Prohibition Notice is in no way reduced by an appeal that allows a Tribunal to examine the realities of the situation with the benefit of additional information. The Prohibition Notice remains in force during the appeal process and is reinforced by the existence of possible criminal sanctions. It follows, that even if the notice is subsequently cancelled, any contravention prior would still be a criminal offence.

Since the Prohibition Notice remains in force during the appeal process, there is no reason that a wider interpretation of section 24 would weaken Prohibition and Improvement Notices in encouraging employers to implement and demonstrate safe work environments.

It had been argued that looking beyond material available to the inspector will introduce undesirable delay and costs into the appeals process. However, an appeal must be launched within 21 days thereafter it is under the control of the tribunal. A longer appeal, would result in the Prohibition Notice being in force longer and thereby have a longer impact. In fact, it will incentivise employers to conclude the case as fast as possible so as to rid themselves of the notice.

It was also argued that the inspector could choose simply not to enforce the notice if later evidence provides that there was no risk, although it would still be registered on the public database to reflect that the notice was correctly served based on the information available to the inspector at the time. The court found this to be unsatisfactory as this solution did not address the fact that a notice has the capacity to damage the reputation of an employer and their ability to do business. Further, even though highly improbable, the employer would still be exposed to the possibility of criminal proceedings.

For all the reasons above, the Supreme Court found that the Tribunal should take account of all the available relevant facts when the Prohibition Notice was served, including that which was discovered after service.

The judgement strengthens the usefulness of the appeals process. When previously an error of fact could not trump the opinion of an inspector, now employers will have a fair chance to present their case based on all available evidence. The appeals process will undoubtedly become more attractive to companies especially when previously many would decide against appealing even where notices where unjust.

For consideration of the full facts of the case and the Inner House appeal please see our previous LawNow at: Court allows subsequent evidence to challenge a Prohibition Notice.