England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 July 2014

Mr Justice Collins :

1. This is an appeal against the decision of an Employment Tribunal which upheld a prohibition notice which had been served by the respondent, an inspector employed by the Health and Safety Executive (HSE), on the appellant on 13 December 2012.
2. The appellant was a sub-contractor on a major construction site in Leeds responsible for the installation of mechanical and electrical plant. On 13 December 2012 the respondent together with two other inspectors visited the site. They entered a High Voltage room which contained transformers, one of which had exposed jointed cables at its rear and other exposed conductors. Contact with any exposed conductor would, if it were live, create a risk of death by electric shock or serious injury from burns.
3. The relevant powers of HSE inspectors derive from the Health and Safety at Work etc Act 1974 (the 1974 Act). They are given powers to enter premises to ensure that an employer is not responsible for practices which risk the health and safety of its employees (s.2 of the 1974 Act) or anyone who might be affected if not an employee (s.3 of the 1974 Act). Often visits by inspectors will take place because there has been an accident causing death or injury but they can and, as this appeal shows, do occur in order to check that there is no material risk. If risks are discovered, the inspector may take various steps to ensure that measures are taken to avoid them before any activity can continue. One such measure is the service of a prohibition notice which, as the title indicates, will prevent further activity unless steps are taken to ensure safety.
4. The inspectors' powers are set out in s.20 of the 1974 Act. This provides, so far as material:-

"20(1). Subject to the provisions of … this section, an inspector may, for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him, exercise the powers set out in sub-section (2) below.

(2) The powers of an inspector referred to in the preceding subsection are the following namely-

(a) at any reasonable time … to enter any premises which he has reason to believe it is necessary for him to enter for the purpose mentioned in subsection (1) above; …

(d) to make such examination and investigation as may in the circumstances be necessary for the purpose mentioned in subsection (1) above;

(e) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything therein, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (d) above; …"

There are also powers to require the production of information and documents and under paragraph (m) "any other power which is necessary for the purpose mentioned in subsection (1) above."

5. One of the positive measures an inspector can take is the service of a prohibition notice. The power to serve such a notice is contained in s.22 of the 1974 Act. It provides, where activities are being carried on by or under the control of any person in relation to which the statutory provisions apply, as follows:-

"22(2) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question is, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as 'a prohibition notice').

(3) A prohibition notice shall-

(a) state that the inspector is of the said opinion;

(b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risk;

(c) where in his opinion any of those matters involves or as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion and give particulars of the reasons why he is of that opinion; and

(d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph 9b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied. "

Subsection (4) provides that a direction contained in a prohibition notice shall come into effect immediately or at the end of any period specified in the notice.

6. Section 23 of the 1974 Act contains what are described as provisions supplementary to section 22. The only material provision for the purposes of this case is s.23(2) which provides:-

"A notice may (but need not) include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates: and any such directions –

(a) may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter."

7. Section 24 deals with appeals. It provides:-

"(1) in this section 'a notice' means an improvement notice or a prohibition notice.

(2) A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

(3) Where an appeal under this section is brought against a notice within the period allowed under the preceding subsection, then-

(a) in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal;

(b) in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).

(4) one or more assessors may be appointed for the purpose of any proceedings brought before an employment tribunal under this section."

The appeal to this court lies in accordance with s.11 of the Tribunals and Inquiries Act 1992 and is limited to errors of law.

8. The right of appeal to the Tribunal is not limited in any way. If Parliament wishes to impose limits on any right of appeal, it can do so, and has in a number of instances done so. In Railtrack Plc v Smallwood [2001] ICR 714, a case which concerned a prohibition notice served following the disastrous accident some two miles outside Paddington Station on 5 October 1999, Sullivan J expressed the view that a tribunal hearing an appeal under s.24 of the 1974 Act was not limited to reviewing the genuinesss or reasonableness of the inspector's opinions but was required to form its own view paying due regard to the inspector's expertise. It was not necessary for Sullivan J to form a concluded view in that case and counsel representing the respondent referred to the far reaching implications of such a decision and declined to make any submissions on the point without an opportunity to consider the question in depth.
9. It seems that the issue was not determined, perhaps because it had not been necessary in any particular appeal to do so, until the decision of Charles J in Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 (Admin). It so happens that both counsel appearing before me were in that case. It seems that both counsel agreed that Sullivan J's approach was correct. As I have said, there is no statutory limit on the nature of the appeal and it is recognised that the tribunal, which sits with lay assessors, will make findings of fact based on what may be extensive evidence as to what the circumstances were when the inspector visited and whether the notice should have been issued having regard to those findings of fact. The tribunal will make its own decision based on its findings of fact.
10. In paragraphs 10 to 12 of Chilcott, Charles J spelt out what he regarded as the correct approach to be applied by the tribunal. These read:-

"10. Returning to the section, that is section 24 and the powers that it confers on the Employment Tribunal, to my mind it emphasises that the focus of attention on the appeal is to the situation on the ground when the notice is actually served. I take that from the point that it can either cancel or affirm the notice, and it is only if it decides to affirm that it can then affirm it with modifications. That seems to me to focus the analysis to the time when the notice was actually served.

11.Turning to section 22 and the focus of the notice itself, that too, necessarily to my mind, focuses the decision making process to the moment at which the notice is served. In broad terms, the section is concerned with the identification, prevention, and thus management of risk. The risk being a risk of serious personal injury by reference to an activity than being carried on, or likely to be carried on by the relevant person or under the control of that person. So, the focus is to as to risk flowing from an activity then being carried on or likely to be carried on as at time X, namely, the time when the notice is served.

12. In that context, it seems to me, by reference and analogy to other areas where risk of significant harm fails to be assessed, and I take by analogy the jurisdictional trigger for intervention by making a public law order in Children Act cases where the relevant risk has to be assessed when the process is started by the relevant local authority, that what has to be established is the relevant risk as at that time. In determining whether or not that risk exists as at that time, the court does not close its eyes to matters that occurred after that time, but that is not the same approach as I would understand generally to be the expression 'judged with the benefit of hindsight'. What the court's function is, is to identify on the evidence before it, which is not restricted to matters that were in existence before a particular date, what the situation was as at that particular date. Did the relevant risk exist? What would happen if it came to fruition? Matters of that type, and in that context to determine, paying due regard to the views of the Inspector, whether a notice should have been served to promote the underlying purposes of the Act, and in particular section 22. The purpose of that, it seems to me, is moderately clear, namely, that a notice should be served if the risk identified of serious personal injury warrants it."

Recently in MWH UK Ltd v Wise 2014 EWCA 427 (Admin), Popplewell J has followed Charles J's reasoning, saying in paragraph 22:-

"On an appeal from the imposition of a … notice, the Employment Tribunal reaches its own decision, paying due regard to the views and the expertise of the inspector. It decides whether it would have served the notice at the time at which it was served on the basis of the information which was available to the inspector or ought reasonably to have been available following such investigation as ought reasonably to have been undertaken."

11. As I have said, I have no doubt that a tribunal will consider what the evidence put before it establishes and, in the light of its findings, decide whether on those facts a prohibition notice would properly have been served. If a risk of serious personal injury is shown to have existed, it would normally be appropriate for the tribunal to uphold the service of a notice with, if they are needed, any modifications.
12. There is a need for the tribunal to have regard to the views and expertise of the inspector. Thus what the inspector would have done may be apparent from the evidence given by the inspector. This must be taken into account by the tribunal and, as will become apparent when I deal with the facts of this case, this is of considerable importance.
13. Before considering the circumstances of this case, I should refer to one further matter namely the effect of a prohibition notice on the recipient apart from the requirements in it. Section 1 of the Environment and Safety Information Act 1988 provides that a register has to be kept. This must include notices served under s.22 of the 1974 Act (see s.2(1) and the Schedule to the 1988 Act). A notice must remain on the register for not less than three years (s.3(5)). The register is open to public inspection. This will, it is submitted by Mr Maxwell-Scott, have a detrimental effect on the appellant's business. Mr Wright in his skeleton argument noted that this was often said but was rarely, if ever, supported by evidence. I would have thought it was obvious that where there were a number of firms bidding for a contract the existence of a prohibition notice would be likely to put an applicant at a disadvantage compared to a rival bidder who had no such history. It is not in the least surprising that positive evidence can rarely if ever be produced.
14. The result of the inspectors' visit was the service of a prohibition notice which was, so far as material, in the following terms. The respondent gave her name and means of contact. The notice continued:-

"…hereby give you notice that I am of the opinion that the following activities, namely any access to the High Voltage (HV) AB income room other than to make the electrical system safe … involve a risk of Serious personal injury, and that the matters which give rise to the said risk are persons are liable to injury from an electric shock and that the said matters involve contravention of the following statutory provisions."

Reference is made to ss.2 and 3 of the 1974 Act and Regulation 4(3) of the Electricity at Work Regulations (SI 1989 No 635) which requires that every work activity, involving operation, use and maintenance of a system and work near a system, shall be carried on in such a manner as not to give rise, so far as reasonably practicable, to danger. The notice continued as reasons for its service:-

"You have not prevented access to conducting parts of the electrical system that can be energised and made live. The electrical system is high voltage."

There followed a direction that the activities covered by the notice must not be carried on with immediate effect until the contraventions and matters had been remedied.

15. The tribunal in its judgment sets out the material facts very clearly. It heard evidence over some four days. In the High Voltage room there were four transformers. Two, identified as A and B, were being commissioned and the switches which served them were dead. The jointed cables that were exposed were at the rear of the structure containing three switches. Two in the middle and left were shown by the absence of a light at the front of the structure as dead, that on the right was shown to be live. The exposed conductors were at the rear of transformers A and B, both of which would be dead if the left hand switch shown as dead was in truth dead. If it was not in fact dead, the danger of serious injury by contact with any exposed conductor is all too obvious.
16. On entering the room, the inspectors (there were three in all) found all the settings and the two locks on the left hand switch to be in positions consistent with the exposed conductors being dead. Each padlock had its own key which was kept in a safe the key to which was kept in another safe protected by a coded lock. Only three persons employed by the appellant had access to the keys and there was an elaborate process required to energise the left hand switch so as to avoid any accidental energisation. Accidental or any improper energisation was a risk which the tribunal regarded as negligible.
17. While it was the inspectors' belief that the conductors were dead, they could not be sure that they were and the appellant was unable to prove that they were. There should have been a system in place overseen by a Senior Authorised Person whereby there was proof provided in the form of documentation that when the switch was in the off position, the conductors were in fact dead. The tribunal accepted the evidence given by the appellant's Project manager that the approach must be to assume live unless proved dead. That is the only way to remove any risk of serious injury. The tribunal put it thus (paragraph 39):-

"[A safe system] will involve in the case of exposed conductors proving them safe, recording that fact … and then preserving those records as part of a safety audit trail."

18. The inspectors' decision to issue the notice was based on the risk that the system could be energised and made live. That possibility was not accepted by the tribunal. However, the tribunal decided that there was a risk however remote that, in the absence of evidence to the contrary, the exposed conductors might be live. To justify the service of a notice, the risk must be more than fanciful or trivial or, to use the tribunal's word, negligible. In the Railtrack case it was said that it would be 'unthinkable' to run trains until the necessary remedial measures had been put in place. The issue at the centre of that case was whether 'activities' could be said to exist when there were none taking place and when none would take place until it was said the necessary measures had been carried out. Sullivan J decided that activities did exist and that the notice was proper as a preventative measure when the risk that the lines could be used existed, albeit it was said that that risk was remote and the evidence was clear that any resumption of running of trains was unlikely. Sullivan J accepted that a risk, however remote, could justify a notice being issued since the need to protect from serious injury was of fundamental importance to the working of the 1974 Act. I do not think that the tribunal was wrong to regard a remote risk as justifying the issue of a prohibition notice.
19. The tribunal said in paragraph 41 that it and the inspectors' task was to decide on the state of knowledge available on the day whether to issue the notice. Available knowledge included that which could be acquired pursuant to a reasonable investigation. The inspectors were unable to ascertain whether the conductors were indeed dead because there was no documentary evidence, as there could and should have been, and there was no-one authorised to work on high voltage equipment available on that day. Thus it was not possible to check whether what the equipment showed was correct. As it happens, subsequent information acquired by one of the inspectors disclosed that the particular type of switchgear, which had been manufactured since 2003, had never been reported to have had any defects which might give rise to false indicators that it was dead. However, that was not information which could reasonably have been obtained on the day of the visit.
20. On the following day, an authorised person established that the conductors were indeed dead and had been dead on 13 December. That person understandably was dressed as necessary to ensure that if they had been live he would not have been injured. But that in itself is not material.
21. In paragraph 43, the tribunal, having referred to the respondent's belief that the power to the conductors was off, said:-

"She believed that they were dead but, in the absence of any evidence of testing, she could not know that, if exceptionally, she was wrong in her belief that the conductors were dead, contact with them would involve potential risk. Accordingly, the only proper way to deal with the problem was to withdraw everyone from the high voltage AB incoming room and issue the notice in the terms she did denying access to the room other than to make the electrical system safe."

The tribunal therefore decided that, since it took the view that there was no more than a negligible risk that there might be energisation, it would modify the notice "so as truly to reflect the reason for the inspectors' belief that the appellant had breached the cited provisions of the 1974 Act and the 1989 Regulations." The modification involved deletion of the words "can be energised and made live" and the substitution of the words "are exposed and cannot be proved dead."

22. Mr Maxwell-Scott had submitted to the tribunal that the decision to issue the notice was premature and that the inspector should have awaited the outcome of the test which was carried out when an authorised person was available the following day. Safety in the meantime could be ensured by a direction pursuant to s.20(2)(e) that the room and its contents must be left undisturbed. That power clearly extends to a direction that no-one must enter the room save for an authorised person to carry out the necessary test. The tribunal rejected this submission, stating in paragraph 41:-

"[Available knowledge] does not … include knowledge that would be obtained as a result of the remedial action required by the notice. Otherwise there would be no point in issuing a notice which is concerned to make an otherwise unsafe situation safe. The appellant has, in our judgment, confused that knowledge with that arising from an investigation pursuant to the powers in section 20. Those powers are given to inspectors to determine whether or not to issue a notice. They are not there as an alternative sanction available to mitigate risk."

23. Charles J in Chilcott in the passage I have already cited said that in determining whether or not the risk existed at the time of the inspector's visit "the court does not close its eyes to matters that occurred after that time." He was careful to distinguish such matters from judging with hindsight. It may be in a given case that evidence of subsequent matters can show that at the material time the factual basis for the decision to issue a notice did not exist or that the inspector had misinterpreted or misunderstood the position. Much will depend on the precise basis upon which the inspector decided that the notice should be issued.
24. It would undoubtedly have been open to the inspectors to decide that the absence of any proper system to prove that the conductors were dead required that a notice be issued to prevent any access until such a system was in place so that there was no chance that it might not be dead even though the equipment showed that it was. The tribunal said in paragraph 42, that it was the absence of documents which could show that no permit to work had been issued in connection with the commissioning of the relevant switchgear and of evidence of testing that caused the notice to be issued. It followed that the test carried out the next day could not be used to challenge the issue of the notice since it was a means of complying with the notice. I should add that the tribunal did not criticise the appellants for not having an authorised person on site on 13 December 2012 who could test the equipment to ensure that it was dead.
25. The tribunal records the evidence given by Mr Burley, the principal specialist inspector and so the most senior of the three who attended, that if the appellants had been able to prove on 13 December that the conductors were dead the notice would not have been issued. It is however clear from the respondents' statements that the inspectors were concerned at the absence of any system which could prove at all times that the conductors were dead when, if they were not, there was a risk of serious injury from exposure to them. However, the notice when issued relied solely according to the reasons given upon the possibility that the conducting parts could be energised. It could have made clear that in addition there was no system in being which could prove that the parts were dead.
26. It follows that these experienced inspectors would not have issued a notice if the appellants had been able to show on 13 December that the parts were dead. But if it was believed that the lack of a system to prove that the parts were dead justified the issue of the notice, whether it was in fact dead on 13 December 2012 was not material.
27. Since the view was that proof that the parts were dead would mean that no notice would be issued despite the lack of a system to prove that it was dead, it would have been possible to extend the investigation to await testing the following day. The existence of a prohibition notice on the register against a company can produce a disadvantage, thus it is reasonable only to issue such a notice if it is clearly needed. In this case lesser action was regarded as sufficient protection if the parts were indeed dead.
28. Mr Wright suggested that action under s.20(2)(e) could not be effectively policed. Breach of a direction is a criminal offence, as is breach of a prohibition notice, and the ability or lack of ability to police is the same for both. In the case of a respectable business undertaking, advice may be all that is in a given case needed and the issue of a notice may properly be regarded as unnecessary.
29. In the circumstances, in my view the tribunal was wrong to decide that the only means of dealing with the situation was the issue of the notice. This was not properly to take account of the expertise of the inspectors in the light of the reasons given in the notice for its issue and the evidence that if the parts were in fact dead no notice would have been issued. I put it that way because it is apparent that if an authorised person had been available on 13 December, proof that they were dead would have been established and no notice would have been issued.
30. It follows that I allow this appeal and the notice must be quashed.