HM Inspector of Health and Safety (Appellant) v Chevron North Sea Limited (Respondent) (Scotland)

Cite as:[2018] UKSC 7
Hand-down Date:February 08, 2018

Hilary Term [2018] UKSC 7 On appeal from: [2016] CSIH 29


HM Inspector of Health and Safety (Appellant) v Chevron North Sea Limited (Respondent)

(Scotland) before

Lord Mance, Deputy President Lord Sumption

Lord Reed Lord Hodge

Lady Black JUDGMENT GIVEN ON 8 February 2018 Heard on 14 December 2017 Appellant Respondent Andrew R W Young QC

Peter Gray QC Barry Smith (Instructed by Clyde & Co) Ian Wright

(Instructed by Anderson Strathern LLP)

LADY BLACK: (with whom Lord Mance, Lord Sumption, Lord Reed and Lord Hodge agree)

1. Chevron North Sea Ltd operates an offshore installation in the North Sea ("the installation"). In April 2013, the installation was inspected by Mr Conner in his capacity as one of Her Majesty's Inspectors of Health and Safety. Mr Conner was accompanied by three colleagues with specialist expertise of particular relevance to the inspection. A vital part of the installation is the helideck, the principal means of reaching the installation being by helicopter. The inspectors examined the condition of the stairways and stagings providing access to the helideck and formed the view that corrosion had rendered them unsafe so that there was a risk of serious personal injury from falling through them. Mr Conner therefore served a prohibition notice on Chevron under section 22 of the Health and Safety at Work etc Act 1974 ("the 1974 Act"). Chevron appealed against the prohibition notice to an employment tribunal under section 24 of the 1974 Act. The question for us to determine is what approach a tribunal hearing such an appeal should take. In particular, in reaching its decision whether to affirm, modify or cancel the notice, is the tribunal confined, as the appellant contends, to the material which was, or could reasonably have been, known to the inspector at the time the notice was served, or can it, as the respondent contends and the First Division of the Inner House of the Court of Session held, take into account additional evidence which has since become available?

The relevant provisions of the 1974 Act

2. Section 22 of the 1974 Act provides:

"22. Prohibition notices

(1) This section 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 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, the activities involve or, as the case may be, will involve a risk of

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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

(b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.

(4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect -

(a) at the end of the period specified in the notice; or

(b) if the notice so declares, immediately."

3. Section 24 provides:

"24. Appeal against improvement or prohibition notice

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(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...

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