Hague (Inspector of Health And Safety) v Rotary Yorkshire Ltd

LORD JUSTICE LAWS: This is an appeal with permission granted by Aikens LJ on 30 September 2014 by Her Majesty's Inspector of Health and Safety against the decision of Collins J given in the Administrative Court on 4 July 2014.

Collins J allowed the appeal of Rotary Yorkshire Limited ("RYL") against the decision of an Employment Tribunal sent to the parties on 2 January 2014 to uphold a prohibition notice served by the Inspector on RYL on 13 December 2012. Collins J quashed the notice.

The prohibition notice was served under section 22 of the Health and Safety at Work etc Act 1974 ("HSWA"). As has been stated in one of the textbooks, Health and Safety Enforcement, the HSWA:

It is convenient at this stage to set out the material provisions in the HSWA. Section 22 appears in part 1 of the Act. Section 1(1) provides, in part:

Then I may go to section 20:

Then section 22:

Section 24 creates a right of appeal against the prohibition notice and also against another measure called an improvement notice. Section 24(2) and (4) provide:

There is a right of appeal from the decision of the Employment Tribunal not to the Employment Appeal Tribunal but to the High Court pursuant to section 11 in Schedule 1, paragraph 16 of the Tribunals and Inquiries Act 1992. Section 11(1) of that Act provides, in part:

Paragraph 16 of schedule 1 specifies the employment tribunals Section 11(2) of the statute, disapplies section 11 in relation effectively to employment cases before the Employment Tribunals where appeal lies to the Employment Appeal Tribunal and is, of course, the general run of employment cases. Issues in this appeal essentially concern the legal nature of both appeal rights; that to the Tribunal and that to the High Court.

The facts of the case were dealt with very fully by the Employment Tribunal, which heard evidence over four days. As I understand it, there was no real dispute about the facts, certainly not the primary facts. The events in question took place at the Leeds Arena, a large construction site in Leeds, in December 2012. Collins J, helpfully, if I may say so, summarised the facts as follows at paragraphs 15 to 17:

The appellant inspector issued an immediate prohibition notice. It stated that she was:

On the following day, 14 December 2012, an authorised person, Mr Howard, engaged by RYL, established that the conductors were indeed dead and had been dead on 13 December 2012. That fact was, of course, before the Employment Tribunal.

Before that Tribunal it was submitted for RYL that the decision to issue the prohibition notice was premature and the inspector should have awaited the outcome of the test which was in fact carried out the following day and, as I have said, demonstrated that the conductors were dead. In the meantime, safety could have been ensured by a direction under section 20(2)(e) that the north high voltage room be locked and left undisturbed until the test was done.

In a somewhat convoluted passage the Employment Tribunal described the approach to be taken to the appeal before it at paragraph 41 of its decision:

On the facts of the case the Employment Tribunal said this:

The Tribunal decided in the light of these matters to modify the prohibition notice:

See paragraph 45 of the decision. Accordingly, they removed in the statement of reasons for contravention in the PN the words, "Can be energised and be made live", and substituted the words, "Are exposed and cannot be proved dead".

Collins J, on appeal to him, drew attention at paragraph 25 to the evidence of Mr Burley, the most senior of the three inspectors who attended the Leeds Arena on 13 December 2012, that if on that day RYL had been able to prove that the conductors were dead the PN would not have been issued. This took the judge towards his conclusions in the case at paragraphs 27 to 29:

Accordingly the judge allowed RYL's appeal and, as I have said, quashed the notice.

The Inspector's first ground of appeal is that Collins J exceeded his jurisdiction. The appeal to him under section 11 of the Tribunals and Inquiries Act 1992 was limited to matters of law. As I have shown, the jurisdiction arises only, "If any party is dissatisfied in point of law", but Collins J, it is submitted, did no more nor less than substitute his own view of the merits of the prohibition notice for that of the Employment Tribunal.

There is, we are told, so far no decision of this court on the scope of a section 11 appeal or, indeed, of an appeal against a prohibition notice under section 24(2) of the HSWA. The scope of a section 11 appeal is, in my judgment, the same as that of any other statutory appeal on a point of law only. There is no particular magic in the words, "dissatisfied in point of law", the appellant must show that the Employment Tribunal has perpetrated a material legal error, a misconstruction of a relevant statutory provision, a finding of fact not rationally supportable on the evidence or a procedural error leading to unfairness. All these are very familiar categories.

On this first ground of appeal I do not consider that Collins J has found such a legal error. The essence of his conclusion is that the Employment Tribunal should have decided that the situation confronting the inspectors could and should have been dealt with by a means less Draconian than a prohibition notice. That is, by action under section 20(2)(e), until tests were conducted the following day. That is a view of the factual merits and it was not, with respect, for the Administrative Court to take such a view.

I acknowledge, however, that there may be another way of looking at the judgment. It might be said that the judge was rejecting, albeit only implicitly, the view of the law expressed by the Employment Tribunal at paragraph 41, namely, to put it in my words rather than those of the Employment Tribunal, that the power given by section 20(2)(e) is to effect a temporary measure to preserve the state of premises while an investigation is carried out under section 20(2)(d). I repeat for convenience just the last two sentences at paragraph 41 of the Employment Tribunal's decision:

On this alternative view of the judgment the judge is to be taken as holding that that last observation was legally erroneous.

This point is effectively raised in the inspector's third ground of appeal and also by issue number 3 in the respondent's notice. It is, to say the least, difficult to get out of the judgment of Collins J any clear conclusion that the Employment Tribunal made this or any other error of law but if his judgment can be so read I would, with respect, hold that it is erroneous. Section 20(2)(e) is clearly ancillary, Mr Maxwell-Scott for RYL accepted this, to a section 20(2)(d) examination or investigation which is underway or contemplated. That means, however, in my judgment, that the section 20 power does not bite where the inspector has already concluded within section 22(2) that there exists a risk of serious personal injury. That is the position here. The inspector was not bound to furnish RYL with an opportunity to repair the (inaudible) which led to her justifiable conclusion that the section 20(2) risk existed. Nothing in the HSE enforcement policy statement or the section 20(2)(e) pro forma, to which Mr Maxwell-Scott took us, persuades me to the contrary. Nor do the factual matters referred to at paragraph 54 of Mr Maxwell-Scott's skeleton to which he referred at the close of his submissions. Those are, in truth, merits point which would not promote a good appeal to the High Court on law under section 11 of the 1992 Act.

That is, however, not the end of the case. The respondent's notice raises issues as to the nature of the Employment Tribunal's appellate jurisdiction under section 24 of the HSWA. RYL submit that section 24(2) confers a broad power on the Employment Tribunal to cancel or affirm the notice according to its own view of the facts, including facts after the event which showed that the decision to issue the prohibition notice was, "Wrong even if not wrong at the time". See R (Hope and Glory Public House) v City of Westminster MC [2011] EWCA Civil 31, paragraphs 34 and 46. That was a licensing case. As was Sagnata Investments Limited v Norwich Corporation [1971], 2 QB 614, to which Mr Maxwell-Scott also referred. The submission is that Mr Justice Collins should have allowed the appeal because later events, the test on 14 December 2012, showed that the prohibition notice had, in truth, always been unnecessary; that there had, in fact, been no risk on 13 December. This is at the heart of the respondent's case.

I have no doubt that section 24(2) of the HSWA confers a right of appeal on the facts and, unlike section 11 of the 1992 Act, not just the law. See the observations of Sullivan J, as he then was, in Railtrack plc v Smallwood [2001] ICR 714 at paragraphs 44 to 49. The view he there expressed was provisional but seems to me to be correct. However, this does not encompass the whole of the question. What facts are the Employment Tribunal to consider? Those which go to the propriety of the prohibition notice at the time it was issued or also later events amounting to hindsight and of which the inspector at the time may have no knowledge or means of knowledge. In Chilcott v Thermal Transfer Limited [2009] EWHC Admin 2086 Charles J adopted Sullivan J's preliminary view as to the scope of a section 24(2) appeal, that it was on appeal on the merits, and proceeded as follows:

On the particular decision of the Employment Tribunal in the case before him Charles J said this at paragraph 21:

See also MWH UK Limited v Wise [2014] EWHC 427 per Popplewell J at paragraph 22.

Mr Maxwell-Scott submitted this morning that this more restrictive view of the Tribunal's jurisdiction would mean that there may be all sorts of questions which the Tribunal would have to go into in deciding whether the prohibition notice was justified at the time. I think, with respect, that this submission was somewhat in terrorem. The Employment Tribunal are simply required to consider and decide whether on the facts which were or should have been known to the inspector a prohibition notice was justified.

In my judgment, Charles J's approach in the Chilcott case was correct; the question for the inspector is whether there is a risk of serious personal injury. In reason such a question must surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision. He or she is concerned with the prevention of injury at that time, that is the focus of the provision, which, it should be remembered, contemplates action in a possible emergency. The Employment Tribunal on appeal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector's action.

I do not consider that the provisions in other statutes dealing with different situations referred to by Mr Maxwell-Scott in his supplementary skeleton illuminate the issue. Nor does the passage in R v Birmingham City Council ex party Ferrero Ltd [1993] 1 All ER 530 at 538, 539, bear on the question whether hindsight evidence might be material on an appeal of the kind arising under section 24. The language of the statute in that case, section 15 of the Consumer Protection Act 1987, was very different. The general observation in Lloyd v McMahon [1987] 1 AC 625 at 697 and also 715 to 716 carry the matter no further. The language of section 264 of the Merchant Shipping Act 1995, another arrow in Mr Maxwell-Scott's quiver dealing with arbitration following a prohibition notice under that statute is an interesting provision but its terms are of a very different character from those of section 24. The licensing cases to which I have already referred in passing are concerned with factual scenarios which are continuing or may continue into the future and that is an important feature. The Vice-Chancellor's dictum in Harris v Evans [1998] 1 Weekly Law Reports 1285 at 1301H to 1302A is relied on. He said this:

Plainly Sir Richard Scott did not have in mind anything like the debate which has been conducted in this case before us. In those circumstances I do not consider that this passage promotes the kind of hindsight jurisdiction contended for by Mr Maxwell-Scott.

To accede to Mr Maxwell-Scott's argument would, I think, risk distorting the section 22 function. The primary question for the Employment Tribunal is whether the issue of the notice was justified when it was done. An inspector may rightly apprehend a risk and be justified in acting on his or her apprehension even though later necessarily unknown events may demonstrate that, in fact, there was no danger. Section 24 is not, in my judgment, to be construed so that it may appear to call in question the propriety of a notice which it may well have been the inspector's duty to issue at the time.

I would, for all these reasons, reject Mr Maxwell-Scott's argument concerning the scope of the section 24 appeal.

There remains ground 2 of the inspector's grounds, that is that the judge should not have taken into account the actual or possible commercial disadvantage to a business of having a prohibition notice registered against it. The reference is to paragraph 27 of the judgment, which I have read. Plainly such a consideration is irrelevant to the merits or demerits of a prohibition notice's issue. It arises here, however, only upon the premise that section 22 and section 20(2)(e) are, so to speak, rival recourses for the inspector, a proposition, which, for reasons I have given, I would reject. I add this: the inspector's view of risk may not be qualified, certainly not undermined, by considerations of commercial advantage or disadvantage.

I note that there is a background concerning registration of prohibition notices and at paragraph 23 of his skeleton argument, to which he referred this morning, Mr Maxwell-Scott said this:

Mr Maxwell-Scott cites a source for that proposition.

The policy is indeed set out in HSE documentation, however, we are not confronted on this appeal with any legal issue concerning registration and I need say no more about it.

For all the reasons I have given I would, for my part, allow this appeal and set aside the judgment of Collins J.

LORD JUSTICE TOMLINSON: I agree.

LORD JUSTICE KITCHIN: I also agree.

MR WRIGHT: My Lords, thank you very much. May we deal with consequential matters. Setting aside the order of Collins J will have the effect of reinstating the orders that the Tribunal made.

LORD JUSTICE LAWS: That must be uncontentious, I assume. Yes.

MR WRIGHT: Thank you for that. So far as costs are concerned, in the Tribunal we provided in default of agreement more detailed assessment in a County Court and in the High Court we provided an addition that in default of agreement, again, costs should be subject to detailed assessment. With that in mind, although we have schedules of costs prepared today and available, I wonder whether the sense of it would be also to order here that the costs of this appeal be subject to detailed assessment, if not agreed, in the same forum as the previous costs will be subject.

LORD JUSTICE LAWS: Given what you have done in the lower courts that may be right but we usually make a summary assessment in a case where the appeal is one day or less.

MR WRIGHT: My Lord, we can do that.

LORD JUSTICE LAWS: Has Mr Maxwell-Scott seen your schedule?

MR MAXWELL-SCOTT: My instructing solicitors have seen it. I presume it covers today rather than what has happened in the lower courts.

MR WRIGHT: It covers all of the costs of this appeal. So they run from a date after the appeal before Collins J's. So they are for this court.

LORD JUSTICE LAWS: If Mr Maxwell-Scott's solicitors has seen them and subject to any objection from him I do not see why we should not save the parties some cash by summarily assessing these appeal costs if the material is available to do that. If there is an insuperable difficulty tell us.

MR WRIGHT: No, my Lord, there is not. They do relate to the appeal in this court and the preparation of it rather than to what has happened in lower courts.

LORD JUSTICE LAWS: We have not seen a schedule. Maybe you are content with the figures, I do not know?

MR MAXWELL-SCOTT: Yes, we are, my Lord. They are comparable to ours.

LORD JUSTICE LAWS: Then subject to my Lords we will order that the inspector have her costs of this appeal and assess the costs in the sum in the schedule. You are not asking us to do anything about the costs below?

MR WRIGHT: My Lord, yes. Of course, in allowing the appeal the orders of Collins J are set aside so you need to provide for those costs as well and I would ask for the inspector's costs of that appeal.

LORD JUSTICE LAWS: That would have to be subject to a detailed assessment because there is no material to do anything else, is there?

MR WRIGHT: My Lord, yes. Indeed, they can travel perhaps in tandem with the Tribunal's costs.

LORD JUSTICE LAWS: Mr Maxwell-Scott?

MR MAXWELL-SCOTT: I would agree with that, my Lord.

LORD JUSTICE LAWS: You do not have any argument that you should not pay the Administrative Court costs in principle, the costs in the High Court?

MR MAXWELL-SCOTT: We were not necessarily expecting to be addressing this point this afternoon. Would it be possible to reflect on it? At the moment I cannot think of any point of principle as to why --

LORD JUSTICE LAWS: I think we may reasonably ask you to deal with the costs, Mr Maxwell-Scott. If you mean you were assuming we would have reserved our judgment you should make no such assumption.

MR MAXWELL-SCOTT: My Lord, I cannot put forward any point of principle as to why costs should not follow the event.

LORD JUSTICE LAWS: I would not have thought so.

MR MAXWELL-SCOTT: I would ask that the Tribunal's decision on costs, namely, that there be 75 per cent of costs rather than 25 per cent, we would rather that 100 per cent be left undisturbed.

LORD JUSTICE LAWS: I have not heard any other application otherwise as yet and I do not think we are going to.

MR WRIGHT: My Lord, no. I stand by what I said before the Tribunal, that we should give some concession to costs there because the notice had been modified and was not affirmed as serve. So I said to the Tribunal it was appropriate for us to --

LORD JUSTICE LAWS: Understood. Subject to my Lords, (a) the order of the Tribunal will remain undisturbed, (b) the inspector shall have her costs before the High Court and be subject to a detailed assessment if not agreed, (c) she shall also have her costs of this appeal summarily assessed to the figure in the schedule.

MR WRIGHT: I am very much obliged, my Lords.

LORD JUSTICE LAWS: Thank you very much indeed. There only remains to thank counsel for their assistance in this, for me anyway, unusual case.