Improvement and Prohibition Notices - A Missed Opportunity?
Improvement and Prohibition Notices are an important weapon in the HSE’s armoury. 8,054 Improvement and Prohibition Notices were served in 2008/09. They are rarely challenged. Should they be?
There are certainly good reasons for considering doing so. Notices constitute enforcement action and have potentially far reaching consequences:
- A blemished record - notices are registered on the HSE’s website and remain there for 5 years for all to see.
- Reputation may suffer.
- The organisation will need to notify its insurers, with a potential knock-on effect on premium costs.
- The organisation may be handicapped in tendering for new contracts because of a requirement to disclose.
- Contravening a notice is a serious criminal offence punishable in the magistrates’ court by a fine of up to £20,000 and/or 12 months imprisonment and in Crown Court by an unlimited fine and/or 2 years imprisonment.
An HSE Inspector is not required to, and rarely will, consult the organisation, hear representations or delay, before issuing a notice, but occasionally the opportunity does present to have a say. If it does, it should not be missed. We have dealt with a situation where the inspector was minded to issue a notice for a flaw in a working procedure capable of being quickly remedied but was persuaded otherwise.
Such opportunities are however rare. It is far more likely that the notice will land on the doormat without any forewarning, particularly in the wake of an accident when most enforcement notices are served. When it does, the natural response, as it should be, is to comply. The organisation may have no choice – having a prohibition notice, which can prevent an activity or equipment being used, lifted can mean “sink or swim” for an organisation. Given the implications however, wherever possible, the notice should carefully scrutinised. HSE inspectors are only human and don’t always get it right and an organisation only has 21 days from service to appeal to the Employment Tribunal.
What are the potential grounds of attack? Some guidance is provided by the recent case of Chilcott v Thermal Transfer Ltd (2009).
TT was the main contractor on a construction site. One of its subcontractors (AA Group) was instructed to erect a steel platform. AA had completed a task specific risk assessment/method statement which identified the risk of falling from height and specified a number of measures to control that risk to include that a MEWP (mobile elevated working platform) should be used to provide access for all work at height. AA’s working supervisor climbed out of the MEWP (contrary to the method statement) and fell though a hole in the platform, fracturing both his ankles. By coincidence, an HSE inspector (Mr Chilcott) made an unplanned site visit that day and was informed of the accident by a security guard. TT was promptly served with a prohibition notice.
The notice prohibited work at height on the basis that TT had “failed to ensure so far as reasonably practicable that work at height is planned to avoid the risk of persons falling from height”. TT appealed the notice. The ET concluded that there was no real risk that AA’s employees would go back onto the platform on the night of the accident. The notice was premature and excessive. The ET cancelled the notice. The HSE appealed to the Administrative Court.
The appeal succeeded. The Court agreed that the ET had erred in law in applying the wrong test and relied too much upon hindsight. The ET should have asked itself whether the risk of serious personal injury existed at the time the notice was issued and not with the benefit of hindsight. The “legal” victory however proved something of a hollow one for the HSE however as the Court also concluded that AA’s method statement evidenced that work at height had been appropriately planned. The contravention identified in the notice did not therefore exist when the notice was issued. The Court declined to modify the notice to refer to supervision rather than planning, since that issue had not been a central concern of the HSE inspector at the relevant time and had not been referred to in the notice. The notice was duly cancelled – overall, a victory for TT.
The case of BT Fleet Ltd v McKenna (2005) provides further guidance. One of BT’s employees was injured whilst lifting a transit tyre onto a tyre changing machine. An Improvement Notice was served contending that BT had failed to avoid the need to undertake the manual lifting of wheels and tyres on to the tyre changing machine. The notice went on to require BT to provide mechanical lifting aids. Before the ET, the HSE accepted that it was not reasonable to direct that BT provide mechanical lifting aids. The ET nevertheless affirmed the notice with a modification referring to to provision of training and supervision as an alternative to mechanical aids. The Administrative Court hearing the appeal disagreed. The notice could only be interpreted to mean manual lifting tyres on to the machine was a breach of the 1974 Act and that the only way to avoid the risk of injury was to install lifting equipment. This went beyond what was required to comply with the Manual Handling Regulations. The notice did not properly enable BT to know what was wrong, why it was wrong and how the HSE intended that what was wrong should be put right. The Administrative Court cancelled the notice.
In summary, there are a number of grounds on which it may be possible to challenge an enforcement notice:
- The wording of the notice may be flawed
- There is/will be no breach of health and safety legislation
- There is/will be no risk of serious personal injury (prohibition notices only)
- The steps identified as necessary to remedy the breach/avert the risk are not reasonably practicable
- The Employment Tribunal would not have issued a notice at the relevant time
Enforcement notices are rarely appealed. In the vast majority of cases, there may be no scope do so. What the Chilcott and BT decisions do illustrate however is that enforcement notices are not and should not be regarded as foregone conclusions; they can be successfully challenged and the consequent damage to reputation and business interests avoided.