HM Inspector of Health and Safety v Chevron North Sea Ltd (Scotland) [2018] UKSC 7

A health and safety inspector served a prohibition notice on Chevron regarding corroded helideck access metalwork. Subsequent testing showed the metalwork was safe. The Supreme Court held that tribunals hearing appeals under section 24 of the 1974 Act may consider evidence arising after the notice was served.

Facts

Chevron North Sea Ltd operates an offshore installation in the North Sea. In April 2013, Mr Conner, one of Her Majesty’s Inspectors of Health and Safety, accompanied by three specialist colleagues, inspected the installation. They examined stairways and stagings providing access to the helideck (the principal means of access being by helicopter) and formed the view that corrosion had rendered them unsafe, creating a risk of serious personal injury from falling through them. Mr Conner served a prohibition notice on Chevron under section 22 of the Health and Safety at Work etc Act 1974, stating that the steel grating of the stagings and stairway treads were in a weakened condition because of corrosion.

Chevron appealed under section 24 and, in July 2013, arranged for the metalwork of concern to be removed and tested. An expert report of March 2014 showed that, save for a panel damaged during the inspection itself (by an inspector striking it with a fire fighting axe), all the metalwork passed the British Standard strength test, with no risk of personnel falling through it.

The tribunal considered the matter on two alternative bases. Based only on information available to the inspector, it would have affirmed the notice in modified form. Taking account of the later expert evidence, it concluded there was in fact no risk of serious personal injury at the time of service and cancelled the notice. The Inner House of the Court of Session upheld the tribunal’s approach. Given a contrary view taken by the Court of Appeal in Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696, leave was given to appeal to the Supreme Court.

Issues

On an appeal under section 24 of the 1974 Act against a prohibition notice, is the tribunal confined to material which was, or could reasonably have been, known to the inspector at the time the notice was served, or may it take into account additional evidence that has since become available, relevant to the state of affairs at the time of service?

Arguments

Appellant (Inspector)

The appellant relied on the reasoning of Laws LJ in Rotary Yorkshire, contending that the tribunal should determine the appeal by reference to facts which were known or ought to have been known to the inspector at the time of the decision. Permitting consideration of later material risked distorting the section 22 function, given that inspectors must often act in emergencies. It was said that a wider interpretation would introduce delay and cost, and that, in practice, where convincing evidence emerged, the inspector would not enforce the notice, although it would remain on the public database.

Respondent (Chevron)

Chevron supported the Inner House reasoning of Lord Carloway, that restricting appeals to a form of judicial review of the inspector’s opinion was inappropriate. An appeal on the facts should enable an appellant to prove, using competent information available at the hearing, that the factual basis of the notice was wrong.

Judgment

Lady Black (with whom Lord Mance, Lord Sumption, Lord Reed and Lord Hodge agreed) dismissed the appeal, holding that the Inner House had correctly interpreted section 24.

While section 22 turns on the inspector’s opinion at the time of service, on appeal the focus shifts: the appeal is against the notice itself, not the inspector’s opinion. The tribunal must examine the facts on which the notice was based—here the state of the metalwork at the time of service—and decide whether the activities did involve a risk of serious personal injury. The inspector’s opinion and reasons are relevant evidence, but there is no good reason to confine the tribunal to material available to the inspector. The tribunal is entitled to consider other evidence shedding light on what the risk in fact was.

Lady Black emphasised that this interpretation is no criticism of inspectors, whose decisions are often urgent and made without comprehensive information; indeed, they may feel less inhibited about serving notices knowing that unfounded concerns can be corrected on appeal. The effectiveness of a prohibition notice is unaffected, since it provides immediate protection reinforced by criminal sanctions, and any contravention before cancellation remains a criminal offence. Employers retain strong incentives to maintain robust systems because the notice remains in force during any appeal unless suspended.

The Court rejected concerns about delay and cost, noting the 21-day appeal period and tribunal control over proceedings. Weighty considerations favoured the wider interpretation from the employer’s perspective: an immediate prohibition notice cannot be withdrawn by the inspector, so appeal is the only route to cancellation. On the narrower interpretation, a notice could remain in force despite proof that no risk ever existed, potentially requiring unnecessary remedial works, damaging reputation, affecting ability to tender for contracts, and leaving the employer exposed to criminal liability. Reliance on the inspector’s discretion not to enforce was inadequate, particularly since registration on the public database would still damage reputation, and the inspector might not accept the later evidence—a forum was therefore needed.

Implications

The decision settles, at least for Scotland and insofar as the Supreme Court’s reasoning will be followed across the United Kingdom, a divergence between the Inner House and the Court of Appeal in Rotary Yorkshire. On a section 24 appeal, tribunals may consider all available evidence relevant to the state of affairs at the time of service of the notice, including evidence coming to light afterwards. The tribunal must still focus on the risk existing at the time the notice was served; the point is evidential breadth, not a change in the temporal focus.

The judgment preserves the protective force of prohibition notices: they take immediate effect, breach remains criminal unless suspended by the tribunal, and inspectors are not penalised for acting on incomplete information in urgent circumstances. For employers, the decision is significant because it provides a genuine mechanism for vindication where subsequent investigation shows that the perceived risk did not exist, mitigating the reputational, commercial and legal consequences of a notice, including entry on the Health and Safety Executive’s public database.

The Court did not disturb the common ground that a section 24 appeal is not limited to reviewing the genuineness or reasonableness of the inspector’s opinion but requires the tribunal to form its own view of the facts, giving due regard to the inspector’s expertise. The decision is grounded in the statutory scheme of the 1974 Act and does not purport to address wider regulatory appeal regimes.

Verdict: Appeal dismissed. On an appeal under section 24 of the Health and Safety at Work etc Act 1974, the tribunal is not limited to the material which was or should have been available to the inspector; it may take into account all available evidence relevant to the state of affairs at the time the prohibition notice was served, including information coming to light after service.

Source: HM Inspector of Health and Safety v Chevron North Sea Ltd (Scotland) [2018] UKSC 7