Challenging HSE enforcement

Gerard Forlin QC and Mike Appleby explain why there is now greater scope for challenging prohibition and improvement notices and argue that the decision whether to appeal or not is now more significant than ever before.

At one time it was thought an appeal against a prohibition or improvement notice might realistically only succeed if the HSE inspector was found to have unreasonably concluded upon the evidence before him there were grounds for serving the notice. However High Court decisions in the last few years have ruled that when considering the decision, the enquiry is not solely restricted to reviewing the evidence available to the inspector at the time the notice was issued.

Improvement and prohibition notices

Inspectors can serve an improvement notice if they are of the opinion an organisation is contravening health and safety law or has contravened health and safety law which might be repeated or continued. The notice must state the legislation contravened and will require the organisation to take steps to remedy the alleged contravention by a certain date.

Inspectors can serve a prohibition notice if they are of the opinion that activities under the control of the organisation involve, or will involve, a risk of serious personal injury. These will usually state the legislation allegedly being breached although not always. The notice will require the organisation to cease the activity until remedial steps have been taken.

A breach of an enforcement notice is a criminal offence which if by an individual can attract a custodial sentence. Magistrates can sentence a defendant to a maximum fine of £20,000 and/or six months imprisonment. In the crown court an unlimited fine and/or imprisonment of up to 2 years can be imposed. 

Appeals against notices are submitted to an Employment Tribunal on form ET1 (or ET1A if more than one notice is being appealed) and a fee is payable. This must be done within 21 days of the service of the notice (ie by the twentieth day after service). In the case of London Borough of Wandsworth v Covent Garden Market Authority EWHC 1245 it was held the time limit can only be extended by the Tribunal if it was not reasonably feasible to file the appeal in time. Therefore the time limit will be strictly applied.

An appeal automatically suspends an improvement notice but not a prohibition notice. Once served a prohibition notice cannot be withdrawn by an inspector without an order of the Tribunal. However an inspector can withdraw an improvement notice without an order so long as the expiry date (ie when it has to be complied with) has not passed. An inspector cannot extend the time for lodging an appeal.

The Tribunal can either cancel the notice or affirm it in its original form or with modifications. There is a separate costs framework for enforcement appeals to the usual employment cases before the Tribunal: the Tribunal has power to award costs to be paid by one party to the other in connection with the proceedings.    

Why appeal?

In the past the view has often been that it is better just to comply with a notice and move on. The problem with this approach is that it may be storing up major problems for the future.

On its website HSE has a public register of enforcement notices that it has served (that have not been appealed). Notices will appear on this database for a period of 5 years. After 5 years, notices served on organisations are removed from this database and placed in HSE’s Notice History Database where it will remain on its website.

It is not uncommon for HSE when prosecuting an organisation to seek to rely on previous notices as part of its case. This can be by introducing the notices as evidence of ‘bad character’ and a propensity to commit health and safety breaches.

However there may be an even more compelling reason for a local authority to consider appealing a notice. When inspectors from HSE investigate incidents or inspect an operation they will often concentrate on the risks involved and can make an assessment upon the steps they wants to see taken without consideration of wider issues. They may not fully appreciate the impact the required changes have on other health and safety risks nor how the notice may affect the prioritisation and allocation of resources for other functions of the local authority, at a time when authorities are facing squeezed budgets, tough funding decisions and the need to justify how they prioritise spending.   

Developments in the law

When a notice is appealed the Tribunal can look at matters afresh. In Chilcott v Thermal Transfer Ltd [2009] EWCA 2086 concerning a prohibition notice it was said the Tribunal should focus on the moment the notice was issued, assess the risk at that time, and consider whether it would have issued the notice. The Court was not restricted to only considering the evidence that was available to the inspector.

In Hague v Rotary Yorkshire Ltd [2014] EWHC 2126 a prohibition notice was served following an unannounced inspection of a high voltage room because the inspector observed exposed conductors at the rear of a switchboard. On the day the company was unable to prove the conductors were dead. The next day, an authorised person tested the equipment and confirmed that it was in fact dead and could not be energised. The Court cancelling the notice said the inspector could have used her powers under the Health and Safety at Work Act 1974 to require the area to be left undisturbed until the test could be carried out. HSE is appealing the Rotary Yorkshire case to the Court of Appeal.

Inspectors can often issue notices when they have had very little time to consider the issues or collect evidence. Further they may be reviewing an operation of which they have little or no relevant experience or knowledge. What these two cases demonstrate is that the appeal process can provide a new assessment and an opportunity for additional evidence and information to be considered. 

Practical considerations

An appeal can be withdrawn at any time. This means that if the time limit is imminent but a local authority is unsure about pursuing an appeal then its position should be protected by lodging an ET1 form, setting out briefly the grounds for appealing, which can always be amended at a later stage.

In 2013 court fees were introduced for cases pursued in Employment Tribunals. This has resulted in a dramatic reduction in the workload of Tribunals (over 70%), meaning that appeals against notices progress more quickly than in the past. Consequently local authorities need to start gathering evidence, including any expert evidence, at a very early stage as directions will be given by the Tribunal for such matters as disclosure of documents, compiling paginated files of evidence for the Tribunal, compiling a list of issues and the exchange of witness statements and expert reports.

In addition to the notice an inspector will serve a notification of contravention under the Fee for Intervention (FFI) cost recover scheme. These notifications can provide a useful insight into the inspector’s thinking. However these also have to be challenged: there is a separate appeal system (a query stage and a dispute stage) determined on written submissions that also has strict time limits. The danger is that simply paying the FFI invoices could amount to evidence in an appeal against the notice or any subsequent prosecution that a local authority accepts there has been a material breach of health and safety legislation.

While there are cost considerations of an appeal for a local authority these equally apply to HSE. The lodging of an appeal can often lead to further discussions between the local authority and HSE which may result in either the notice being withdrawn or being modified usually with each party paying their own costs.

Gerard Forlin QC of Cornerstone Chambers is a specialist regulatory and health and safety barrister and Vice Chair of the Health and Safety Lawyers Association.  He is General Editor of Corporate Liability: Work Related Deaths and Criminal Prosecutions, Bloomsbury Professional, 3rd edition 2014. (www.cornerstonebarristers.com/barrister/gerard-forlin and www.gerardforlin.com)

Mike Appleby is a leading health and safety solicitor and Head of the Health and Safety Team at Bivonas Law (www.bivonaslaw.com). He writes a regular column for SHP, the official magazine of the Institution of Occupational Safety and Health (IOSH).