Court allows subsequent evidence to challenge a Prohibition Notice

On 29 April 2016 the Inner House of the Court of Session held that evidence generated following the issuance of a Prohibition Notice can be used in support of challenging the Prohibition Notice. Chevron North Sea Ltd (“Chevron”) successfully appealed a Prohibition Notice at an Employment Tribunal under section 24 of the Health & Safety at Work etc. Act 1974, which was subsequently appealed further by the HM Inspector of Health & Safety to the Court of Session.

Chevron was issued a Prohibition Notice on their installation in the Captain Field of the UKCS on 23 April 2013. The HM Inspector of Health & Safety inspectors found an issue with corrosion on the steel forming the stairways and staging that gave access to the helipad on the platform. As the helipad was the installation’s evacuation route, the inspectors considered that the corroded steel, forming a key part of the route, would not support the weight of multiple men carrying equipment in the event of an evacuation. They therefore believed there to be a risk of serious personal injury and issued the Prohibition Notice. A Prohibition Notice will prevent certain activities/work taking place, as set out in the notice, normally with immediate effect.

Following the Prohibition Notice being issued, Chevron had the stairways and staging tested at Exova lab where it was found that the British Standard requirement for floor surfaces and walkway strength was met. In addition to this, at the time of the Prohibition Notice being served, there were remedial works being undertaken on the stairways and staging to ensure their safety. There were also barriers in place to prevent use during the remedial process.

In consideration of the Exova test, the remedial works, and with regard to the inspectors being due to be on-board for a further two days, the Tribunal cancelled the Prohibition Notice. This was upheld by the Inner House as it was considered that in these circumstances it was unnecessary and unreasonable to issue the Prohibition Notice.

The important issue that this case resolved was the allowance of consideration of information that only became available after the issue of a Prohibition Notice in deciding whether it should be cancelled. The court held that, “[i]t would be unjust for a notice to remain, when it transpired that its factual basis was erroneous”. It was further held the Tribunal made no errors in law when cancelling the Prohibition Notice and that the evidence later generated, “could be taken into account, as long as it shed light on what the situation had been at the time of the notice”.

This is an important case for companies that are recipients of Prohibition Notices that they believe are unreasonably issued on factual grounds. It clarifies the ability of companies to seek to prove that they are operating safely by objective standards, even when an inspector may have the opinion that it does not appear that way at the time. Many companies decide against appealing a notice, even when they consider it is unfair and unjustified, and the time limit for lodging such an appeal is very tight – being only 21 days from service of the notice, but this case may lead companies to consider further such a decision.

But whatever that decision may be, it must be made without delay, given the very restrictive time period for appeal.