The recent decision by the Court of Appeal in Hague v Rotary Yorkshire Limited (2015) has clarified the power of the Health and Safety Executive’s (HSE) inspectors to issue enforcement notices and the right of organisations to appeal against them through the Employment Tribunal and higher courts.

Background
The Rotary Yorkshire case concerned a prohibition notice that was served after an unannounced inspection of a high voltage room was carried out by an inspector. The inspector found exposed conductors at the rear of a switchboard and issued the prohibition notice as the company was unable to prove on the day that the conductors were dead. An authorised person tested the conductors and confirmed that they were dead and could not be energised. Rotary Yorkshire appealed against the prohibition notice through an Employment Tribunal.

The Employment Tribunal held that the prohibition notice was valid (albeit with a minor modification to the text), but this was overturned by the High Court. The High Court believed that the inspector should have exercised their alternative power to order the conductors to be left undisturbed until it was confirmed that they were dead. Additionally, the High Court felt that the publication of prohibition notices on a publicly accessible website could have a detrimental effect on a company’s business and should therefore only be served when clearly needed. The HSE appealed this decision and the Court of Appeal has now reinstated the Employment Tribunal’s original decision. No further appeals will follow.

The Law
Under the Health and Safety at Work etc. Act 1974, an enforcement notice can be challenged in the Employment Tribunal. It used to be believed that a prohibition notice would be judged on the basis of whether the inspector had reasonably believed at the time that there was a risk of serious personal injury based on the evidence available to them.

Subsequent case law has established that the tribunal is entitled to consider certain information which was not available to the inspector at the time. In Railtrack v Smallwood (2001), regarding a prohibition notice served on the railway signal involved in causing the 1999 Ladbroke Grove disaster, the High Court was of the opinion that:

“ tribunal was not limited to reviewing the genuineness and / or reasonableness of the inspector’s opinions. It was required to form its own view, paying due regard to the inspector’s expertise.”

However, this view was not part of the ruling of that case and was not binding. A similar decision was not formally adopted until Chilcott v Thermal Transfer Ltd (2010), where the High Court confirmed:

“ is to identify on the evidence before it, which is not restricted to matters which were in existence before a particular date, what the situation was as that particular date… close its eyes to matters that occurred after that time.”

This ruling increased the chances of a business successfully challenging an enforcement notice, and was applied by the Court of Appeal in Rotary Yorkshire. The court found that, in light of the Chilcott ruling, the test on the wiring by the authorised person should have been taken into account and the original decision by the tribunal was correct.

Conclusions
The important points to draw from this case are:

• The tribunal must consider whether a notice is justified based on the facts which were known or should have been known. (The addition of the underlined section will effectively make it easier to challenge enforcement notices.)
• The tribunal is not entitled to consider the commercial impact of enforcement notices. The commercial damage caused by the notice is effectively considered to be the business’s fault through the conditions which prompted the notice.
• Inspectors are not required to exercise their lesser power to order the site to be left undisturbed where the inspector had already concluded that there was a risk of serious personal injury. The inspector still has discretion to issue notices as they see fit.

The HSE succeeded with their appeal in Rotary Yorkshire, but the court’s ruling was very much in favour of businesses that wish to make their own appeals against enforcement notices. You should still maintain your safety management systems so that you can demonstrate the condition of your site to a visiting inspector, but now you can reduce the damage if you lack a vital piece of evidence on the day of the visit.