Industrial Tribunals Northern Ireland Decisions
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URL: http://www.bailii.org/nie/cases/NIIT/2012/1955_12IT.html
Cite as: [2012] NIIT 01955_12IT, [2012] NIIT 1955_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1955/12
APPELLANT: McGlinchey Brothers NI Ltd
RESPONDENT: Health and Safety Executive for Northern Ireland
DECISION
The Prohibition Notice issued on 19 September 2012 by the respondent to the appellant is affirmed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mrs P Weir
Mrs M J McReynolds
Appearances:
The appellant was represented by Mr Colin McGlinchey, one of the directors of the appellant company.
The respondent was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitors Office.
Amendment of Title
1. By consent, the title of the claimant was amended to that shown above.
Issue
2. The issue for the tribunal is whether the Prohibition Notice served on the appellant by the respondent under the Health and Safety at Work (Northern Ireland) Order 1978 dated 19 September 2012, should be cancelled or affirmed.
3. The respondent submitted that in this case the tribunal did not need to consider any modification should it determine that the Prohibition Notice should be affirmed.
Sources of Evidence
4. The tribunal heard evidence from Colin McGlinchey one of the directors in the appellant company (“The Company”). It also heard evidence from Fiona Watt, the inspector who visited the company’s premises. The tribunal was also presented with a bundle of documentation by the respondent and took into account the documents referred to it in the course of evidence.
Findings of Fact
5. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The company is a small engineering business established in 1967 with Colin McGlinchey, Terence McGlinchey and Keith McGlinchey, constituting its workforce. The tribunal accepts that the company has been under financial pressure in recent times.
(ii) Fiona Watt, Health and Safety Inspector, visited the company’s premises on 19 September 2012 and issued a Prohibition Notice which stated, inter alia:-
“… I am of the opinion that the following activities namely:
operation of the Safan Press Brake … involve, or will involve a risk of serious personal injury, and that the matters which give rise/will give rise to the said risks are:- operation of the press break with a broken light guard and access to behind the machine and that the said matters involve contravention of the following statutory provisions:
The Provision and use of Work Equipment (NI) 1999 Regulation 11
because effective measures have not been taken to prevent access to parts of the machine and I hereby direct that the said activities shall not be carried on by you or under your control immediately … unless the said contraventions and matters have been remedied …”.
Inspector’s Official Location of Environment
full name
address
premises or
place
of activity
and Safety
Information
(Northern
Ireland)
Order 1993
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CONTROLLING RISK TOGETHER |
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Serial Number PN190912FW1 |
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Health and Safety at Work (Northern Ireland) Order 1978 |
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(as amended by the Health and Safety at Work (Amendment) |
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(Northern Ireland) Order 1998) |
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Articles 24, 25 and 26 |
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Prohibition Notice |
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Name: |
Colin McGlinchy |
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Address: |
Unit 4, Building 13, Central Park, Mallusk |
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Trading as* |
McGlinchy Brothers Ltd |
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I, Fiona Watt |
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Health and Safety Inspector of The Health and Safety Executive for Northern Ireland 83 Ladas Drive Belfast, BT6 9FR Telephone Number: 028 9024 3249 |
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being an Inspector appointed by an instrument in writing made pursuant to Article 21 of the said Order and entitled to issue the notice |
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hereby give you notice that I am of the opinion that the following activities namely: |
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operation of the Safan press brake. |
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which are being carried on by you/likely to be carried on by you/under your control* at: |
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the above address. |
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involve, or will involve, a risk of serious personal injury, and that the matters which give rise/will give rise* to |
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the said risks are:- |
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operation of the press brake with a broken light guard and access to behind the machine. |
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and that the said matters involve/will involve* contravention of the following statutory provisions: |
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the Provision and Use of Work Equipment (NI) 1999 Regulation II |
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because effective measures have not been taken to prevent access to dangerous parts of the machine. |
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and I hereby direct that the said activities shall not be carried on by you or under your control |
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immediately/after* unless the said contraventions and matters have been remedied. |
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I further direct that the measures specified in the Schedule which forms part of this notice shall be taken to |
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remedy the said contraventions or matters.* |
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Signature: Fiona Watt |
Date: 19/09/12 |
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*A Prohibition Notice is also being served on Terrance McGlinchy and Keith McGlinchy |
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of McGlinchy Brothers Ltd. |
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related to the matters contained in this notice. |
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This is a relevant notice for the purposes of the Environment and Safety Information (Northern Ireland) Order |
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1993 |
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YES/NO* |
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This page only will form the register entry.* |
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Signature: Fiona Watt |
Date: 19/09/12 |
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(iii) Colin McGlinchey, who spoke to Fiona Watt during her visit, has been co-operative in his dealings with the respondent. He has attended to a number of other matters which were raised by the Inspector following her visit. His witness statement to the tribunal explained how he had operated the press for over 20 years without incident. He was well aware of the potential dangers but felt safe and confident in the use of the machine and invited inspection by an independent assessor. The press is an old machine and Colin McGlinchey had taken steps to obtain a quote to remedy the matters highlighted by the respondent. He appended the quote to his witness statement which amounted to £5,075.00. Fiona Watt had conducted her own research and had obtained quotes, the cheapest of which was for £3,500.00 to include fitting.
(iv) It was clear to the tribunal that the Safan Press Machine is a powerful machine and part of its operation involved an operating speed of 40 mm per second, some three to four times above the recommended speed. The light guard was designed to stop the machine if, for example, someone’s hand moved into the danger zone. In the absence of this infrared technology, an operator could potentially sustain serious injury such as the amputation of fingers or even a hand. Colin McGlinchey, and later Fiona Watt explained the significance of the twofold movement of the press break, the first stage being at a higher speed and therefore more dangerous than the second stage.
The Law
6. The relevant statutory provisions governing the issue of Prohibition Notices are set out in Articles 24-26 of the Health and Safety at Work (Northern Ireland) Order 1978 (as amended):-
“24 (1) This Article applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.
(2) If as regards any activities to which this Article 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, 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 -
(a) stating that the inspector is of the said opinion;
(b) specifying 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, stating that he is of that opinion, and -
(i) specifying the provision or provisions as to which he is of that opinion; and
(ii) giving particulars of the reasons why he is of that opinion; and
(d) directing 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 sub-paragraph (b) and any associated contravention of provisions so specified in pursuance of sub-paragraph (c) have been remedied.
(3) A direction contained in a Prohibition Notice in pursuance of paragraph (2) (d) shall take effect-
(a) at the end of the period specified in the notice; or
(b) if the notice so declares, immediately.
25 (1) In this Article and Article 26 ‘a notice’ means an improvement notice or a Prohibition Notice.
(2) A notice may include directions as to the measures to be taken to remedy a contravention or matter to which the notice relates; and any such direction -
(a) may be framed to any extent by reference to any approved code of practice; and
(b) 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.
(3) Where any of the relevant statutory provisions applies to a building or any matter connected with a building and an inspector proposes to serve an improvement notice relating to a contravention of that provision in connection with that building or matter, the notice shall not direct any measures to be taken to remedy the contravention of that provision which are more onerous than those necessary to secure conformity with the requirements of any building regulations for the time being in force to which that building or matter would be required to conform if the relevant building were being newly erected unless the provision in question imposes specific requirements more onerous than the requirements of any such building regulations to which the building or matter would be required as aforesaid.
(4) In paragraph (3) “the relevant building”, in the case of a building, means that building, and, in the case of a matter connected with a building, means the building with which the matter is connected.
(5) Before an inspector serves in connection with any premises used or about to be used as a place of work a notice requiring or likely to lead to the taking of measures affecting the means of escape in case of fire with which the premises are or ought to be provided, he shall consult the Northern Ireland Fire and Rescue Service Board.
(6) Where a notice which is not to take immediate effect has been served -
(a) the notice may be withdrawn by an inspector at any time before the end of the period specified therein in pursuance of Article 23 or Article 24(3) as the case may be; and
(b) the period so specified may be extended or further extended by an inspector at any time when an appeal against the notice is not pending.
26 (1) 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 industrial 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.
(2) Where an appeal under this Article is brought against a notice within the period allowed under paragraph (1) 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).
(3) One or more assessors may be appointed for the purposes of any proceedings brought before an industrial tribunal under this Article.”
7. The High Court in England considered the correct approach to be adopted by the tribunal in deciding an appeal against a Prohibition Notice in the case of Chilcott v Thermal Transfer Ltd [2009] EWHC 2086. At paragraph 12 of his judgment, Charles J states:-
“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.”
The correct approach, as set out in Chilcott, is for the tribunal to form its own view paying due regard to the views of the inspector.
8. Charles J also pointed out that the focus of the tribunal’s decision-making process should be on the time when the Notice is served. He states at paragraphs 10 and 11 of his judgment:-
“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 it 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.
Turning to Section 22 and the focus of the Notice itself, that too, necessarily to my mind, focuses a 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 then being carried on, or likely to be carried on by the relevant person or under the control of that person. So, the focus is as to risk flowing from an activity then being carried out or likely to be carried on as at time X, namely, the time when the Notice is served.”
9. The task of the tribunal therefore, as set out by Charles J, is for the tribunal to substitute its view for that of the inspector at the time the Notice was served and to decide what the tribunal would have done at that point in time paying due regard to the views of the Inspector.
Submissions
10. (1) The tribunal considered oral submissions, which, in the respondent’s case, were supported by a list of authorities and relevant extracts from same. Mr McGlinchey, in his oral submissions, indicated that he could not argue about the Rules and Regulations and that in an ideal world the light guard should be on the machine. However in light of his background experience with the machine and the financial situation he appealed to the tribunal, in terms, to uphold his appeal.
(2) Mr McAteer referred to the claimant acknowledging the need for a new light guard and submitted that the press brake was a very dangerous piece of machinery. He further submitted that the relevant legislation was about the protection of employees and self-employed persons and any other person who is at risk by carrying out any of the operations in question. Mr McAteer reflected the respondent’s sympathy with such a business in difficult times but submitted that this could not be a reason for bypassing good safety practices and that the legislation is as much about protecting people from themselves as protecting other people. He submitted that if the notion was to be encouraged of not being able to afford to implement appropriate safety devices and practices in the current climate, this would encourage any number of people to take risks that otherwise they would not take. He further submitted that it was clear that there could be a serious risk of injury in using the machine without the light guard, and that Colin McGlinchey was asking the tribunal to permit him to take that risk which Mr McAteer did not think was something the tribunal ought to do. He accepted on behalf of the respondent that, even though there had been no injury in the last 20 years and the light guard had been working and used for 12 of those years, one cannot rule out the possibility of an accident. He reiterated that in the absence of the light guard there was a serious risk of serious injury by the continued use of the machine. He hoped that Mr McGlinchey could make inquiries and take the necessary steps to address the matter. He submitted that his evidence was effectively that the outlay in preparing the machine would be unwelcome but certainly was not going to put him out of business. Mr McAteer urged the tribunal to dismiss the appeal without modifications to the Prohibition Notice.
Mr McGlinchey disputed part of Mr McAteer’s submissions and submitted that if he had to pay for a new light guard, this could “close the doors” of the company.
Conclusions
11. Having considered the evidence and the facts as found together with the relevant law and submissions by the parties, the tribunal concludes as follows:-
(1) The tribunal has to determine, in accordance with the test set out in Chilcott, whether, in its view, and on the evidence before it, the relevant risk existed. The tribunal must therefore substitute its view for that of the inspector at the time the Prohibition Notice was served and decide what it would have done at that point in time, paying due regard to the inspector’s views.
(2) The tribunal is satisfied that it would have issued a Prohibition Notice in the same terms and at the same time as Miss Watt served the Prohibition Notice. The tribunal therefore affirms the Prohibition Notice dated 19 September 2012.
Chairman:
Date and place of hearing: 13 November 2012, Belfast.
Date decision recorded in register and issued to parties: