The UK Supreme court has published its judgement in the case of Health Safety Executive(HSE) v Chevron North Sea Ltd which dismissed the HSE appeal.
The case relates to a Prohibition Notice served by HSE on an offshore installation where inspectors formed a view that corrosion had rendered parts of the helideck structure unsafe so that there was a risk of serious personal injury. The company appealed but also made arrangements to test the metalwork, the results of which were set out in an expert report almost a year later. The metalwork passed the relevant British Standard strength test.
At the Employment Tribunal, the decision for the appeal of the Prohibition Notice went in favour of the company despite HSE arguing that the tribunal should focus on the information that was available, or ought reasonably to have been available, to an inspector at the time of service of the notice.
HSE appealed on the basis of a different case in England (Hague (one of Her Majesty’s Inspectors of Health and Safety) v Rotary Yorkshire Ltd (2015) in which the Court of Appeal decided the case on the opposite interpretation (i.e. that the tribunal should decide the case on information before the inspector at the time they formed a view).
In view of those contradictory positions and the possibility of confusion in Tribunal appeals north and south of the border, HSE was given leave to appeal to the Supreme Court. The judgment itself is available on the Supreme Court website.
In light of this outcome the Supreme Court has said specifically that there is no criticism of the inspectors involved. In particular, the Court recognises that decisions often have to be taken as a matter of urgency and without the luxury of comprehensive information.
The Court goes further to say that ‘there is no reason for him (sic) to be deterred from serving the notice by the possibility that, should more information become available at a later stage, his concerns turn out to be groundless. Indeed, he might just as well feel less (original emphasis) inhibited about serving it, confident that if it turns out that there is in fact no material risk, the position can be corrected on appeal’.
The above judgement should not lead to a change in decisions made by inspectors from HSE and local authorities. Inspectors will continue to consult upon its own internal procedures and the National Code which requires local authorities regulatory practice to be consistent with the national guidance and procedures shared by HSE.
