HM Inspector Of Health And Safety (Appellant) v Chevron North Sea Limited (Respondent)

Clyde & Co has acted for Chevron in overturning a prohibition notice issued by the Health and Safety Executive (HSE) in a case now decided in the Supreme Court.

With Clyde & Co's assistance, Chevron had successfully challenged the notice at an employment tribunal in Aberdeen in 2014 and resisted the HSE's appeal against that decision to Scotland's first appeal court, the Inner House of Session, in 2016.

Relying on a conflicting judgment from the Court of Appeal in England on the relevant point of law, the HSE appealed again to the Supreme Court.

In dismissing the HSE's appeal, the Supreme Court has confirmed that a tribunal hearing an appeal against a prohibition or improvement notice under section 24 of the Health and Safety at Work etc. Act 1974 (the Act) is entitled to take into account evidence that was not known (and could not reasonably have been known) to the inspector at the time he issued the notice.

The Act

Section 22 of the Act enables an HSE inspector to serve an employer with a prohibition notice if he is of the opinion that an activity carried on by the employer poses a risk of serious personal injury. It is a criminal offence under section 33 of the Act to continue that activity until the matters giving rise to the risk of serious personal injury have been remedied.

The notice can be drawn up to take effect immediately or at the end of a specified period. If the latter, the inspector can withdraw the notice at any time before the date on which it takes effect but an immediate notice cannot be withdrawn. An employer served with a notice can appeal to an employment tribunal under section 24 of the Act. Although an appeal does not suspend the notice, the appellant may ask the tribunal to suspend it until the appeal is disposed of or withdrawn. Notices which are not withdrawn or cancelled on appeal are ultimately registered on a public database by the HSE.

The question for a tribunal faced with a section 24 appeal is whether, on the facts, the notice ought to have been issued. However, on the wording of the statute it is not immediately clear whether the Tribunal is only entitled to have regard to the facts which were known, or ought reasonably to have been known, to the inspector at the time he served the notice.

This was the issue which the Supreme Court had to determine.

Facts

During a planned inspection of Chevron's offshore installation in the Captain Field of the North Sea in April 2013, an inspector formed the view that...