The Supreme Court has recently considered the test to be followed by an Employment Tribunal (“ET”) hearing an appeal against a Prohibition Notice or Improvement Notice under section 24 of the Health & Safety at Work Act 1974.
Prior to the ruling in Inspector of Health and Safety v Chevron North Sea Ltd  there were conflicting appeal court authorities regarding the important question of whether the ET could take into account evidence obtained after the imposition of the Notice when considering the appeal.
The Supreme Court agreed with both parties that the ET’s focus should be on the risk which existed at the time the notice was served. The debate was over the evidence that the tribunal is entitled to take into account when forming its view of the facts as they were at the material time.
Chevron operates an offshore installation in the North Sea, a vital part of which is the helideck, the principal means of reaching the installation being by helicopter. HSE inspectors examined the stairways and stagings providing access to the helideck and formed the view that corrosion had rendered them unsafe. A Prohibition Notice was served and Chevron appealed it to the Employment Tribunal. Chevron sought to rely on an expert report as part of their appeal. That expert report was obtained after the time of the HSE inspection and found that all the metalwork passed the British Standard strength test and was therefore safe.
The HSE argued that the ET should only be concerned to see whether the facts which were known or ought to have been known justify the inspector’s actions. Their view is that the primary question for the ET is whether the issue of the notice was justified when it was imposed.
The Supreme Court disagreed and held that the ET is not limited to considering the matter on the basis of the material which was or should have been available to the inspector. The ET is entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served, which in present case meant that Chevron could rely on the expert report it had obtained.
What this means in practice is that if an organisation believes that a Prohibition or Improvement Notice has been imposed unjustifiably it can obtain expert evidence which the ET will be entitled to take into account when considering an appeal against the Notice.
An appeal against a Notice must be made within 21 days of it being imposed but the additional evidence can be obtained any time before the ET hears the appeal.