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Cite as: [2009] EWHC 2086 (Admin)

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Neutral Citation Number: [2009] EWHC 2086 (Admin)


Royal Courts of Justice
London WC2A 2LL
17 July 2009

B e f o r e :




Computer-Aided Transcript of the Stenograph Notes of
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MR I WRIGHT (instructed by BOND PEARCE LLP) appeared on behalf of the Claimant
MR J MAXWELL-SCOTT (instructed by ASB LAW) appeared on behalf of the Defendant



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  1. MR JUSTICE CHARLES: This is the hearing of an appeal against the decision of an Employment Tribunal which allowed an appeal under section 24 of the Health and Safety at Work Act 1974 against a Prohibition Notice that was dated 29 July 2008. The Prohibition Notice was served pursuant to section 22 of the 1974 Act. Section 22 provides:
  2. "(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 applied. (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 involved, or as the case may be will involve, a risk of 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 in which, in his opinion, give, or as the case may be, will give rise to the said risk; c) whether 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 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 conclusions so specified in pursuance of paragraph C above, shall have been remedied."

    I do not think I need read on for present purposes.

  3. I pause to comment that it can be seen that the requirements of what should be contained in a Prohibition Notice are, in mandatory terms, fairly closely prescribed.
  4. Moving on to section 24, that provides as follows:
  5. "(1) In this section, a notice means an Improvement Notice or a Prohibition Notice. (2) The person on whom a notice is served may, within such period from the date of its services may be to prescribe, appeal to an Employment Tribunal, and on such an appeal the Tribunal may either cancel or affirm the notice. If it affirms it, it may do so in either 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 the notice in the period allowed under the preceding subsections, 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. (4) One or more assessors may be appointed for the purpose of any proceedings brought before an Employment Tribunal under this section."
  6. The appeal to this court is brought pursuant to section 11 of the Tribunals and Enquires Act 1992, and so, as is common ground before me, to succeed the appellant has to identify an error or errors of law by the Employment Tribunal in reaching their decision.
  7. In Railtrack Plc v Smallwood [2001] ICR 714, at paragraph 44, Sullivan J, as he then was, said this after citing section 24:
  8. "In the light of those factors, and of the authorities cited in De Smith Woolf & Jowell's Judicial Review of Administrative Law (1999), pp 251-252, paragraph 6-010, I expressed the provisional view during the course of argument that a Tribunal hearing an appeal under section 24 of the 1974 Act was not limited to reviewing the genuineness and/or the reasonableness of the Inspector's opinions. It was required to form its own view, paying due regard to the Inspector's expertise, see in particular Sagnata Investments Ltd v Norwich Corporation [1971} 2QB 614."
  9. In paragraph 46 of that judgment, Sullivan J points out that the representative of the Inspector in that case reserved the position of the Inspectorate as to the correctness of that approach.
  10. I was told that, before the Employment Tribunal, the representative of the Inspector in this case did not accept the correctness of that view of Sullivan J, and therefore was effectively arguing for a judicial review approach to the decision of the Inspector. To my mind, this may well have caused some confusion in the minds of the Employment Tribunal when they came to deliver their decision.
  11. The appellant, before me, embraced Sullivan J's approach.
  12. On the appeal before me, both the representatives of the Inspector and the appellant invite me to adopt Sullivan J's preliminary approach as to the test to be applied on an appeal. I do so. To my mind, that is the correct approach. I have reached that conclusion without the benefit of contrary argument, or indeed being referred to the text book authority and authorities referred to by Sullivan J. However, the statutory structure of this litigation, leads me to conclude, like him, that it is open to the Employment Tribunal on an appeal to reach its own decision, and its focus is not upon what would essentially be public law challenges to the decision of the Inspector. The alternatives carry significant differences in the approach to be adopted.
  13. 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 that 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.
  14. Turning to section 22 and the focus of the notice itself, that too, necessarily to my mind, focuses the 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 to as to risk flowing from an activity then being carried on or likely to be carried on as at time X, namely, the time when the notice is served.
  15. In that context, it seems to me, by reference and analogy to other areas where risk of significant harm falls to be assessed, and I take by analogy the jurisdictional trigger for intervention by making a public law order in Children Act cases where the relevant risk has to be assessed when the process is started by the relevant local authority, that what has to be established is the relevant risk as at that time. In determining whether or not that risk exists as at that time, the court does not close its eyes to matters that occurred after that time, but that is not the same approach as I would understand generally to be the expression 'judged with the benefit of hindsight'. 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.
  16. The first point for me is whether the Employment Tribunal applied that test. The background facts are helpfully set out in the reasons of the Employment Tribunal, in particular at paragraphs 1 to 8:
  17. "1. This is an appeal under section 42(1) Health and Safety at Work Act 1974 against a prohibition notice under section 22. The facts as we find them are as follows.
    2. The appellants are the main contractors fro the Catalent Zydis site in Swindon. They engaged sub-contractors, the AA Group, to carry out platform steelwork. The platform was a steel platform about 4m in height which was to be used for installing cooling towers and which, we believe, was to remain as part of the final structure as a means of access to the cooling towers.
    3. The two parties agreed a "Task Specific Risk Assessment/method Statement". The Assessment identified "falling from height" as a hazard to be addressed. Part 6 of the document sets out the Sequence of Works. The last part of this Method Statement dealt with erecting the handrails. This stated-
    "With all steel erected handrail will be fitted from the mewp."
    "Mewp" is an acronym for a mobile platform.
    4. Mr Cade was the appellant's Site Manager. On the Morning of 29 July he had walked around the site and saw that Mr Campbell, who was employed by the AA Group as a working supervisor, was working from the platform with his assistant. This practice was contrary to the Method Statement agreed with the sub-contractors, which provided for all such work to be done from the mewp without standing on the platform, but Mr Cade was not aware of this provision in the Method Statement and took no action.
    5. At about midday on 29th July Mr Campbell fell through a hole in the platform and broke both his ankles.
    6. By coincidence Mr Chilcott, one of Her Majesty's Health and Safety Inspectors, had decided to make an unplanned visit to the site that day. On arrival he was informed of the accident by the security guard at the gatehouse. He decided to investigate.
    7. At about 17.30 he issued a Prohibition notice in the following terms -
    'I...hereby give you notice that I am of the opinion that the following activities namely:
    Work at height on the access platform for the new cooling towers which are under your control at
    Catalent Pharma Solutions, Frankland, Rd. Blaygrove Rd, Swindon
    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:
    there is a risk of death or serious personal injury from persons falling from height as there is not suitable and sufficient edge protection or a safe system for installing it and there are gaps in the floor
    and that the said matters involve/will involve contravention of the following statutory provisions:
    Health and Safety at Work etc. Act 1974 section 3
    Work at Height Regulations 2005, Regulation 4
    you have failed to ensure so far as is reasonably practicable that work at height is planned to avoid the risk of persons falling from height
    and I hereby direct that the said activities shall not be carried on by you or under your control immediately unless the said contraventions have been remedied'.
    8. Once such a Prohibtion Order has been made it cannot be revoked by the Inspector, but the next day Mr Chilcott said that he was happy to 'lift' the Prohibtion Notice."
  18. As appears therefrom, the Method Statement that had been agreed by the appellant company with their sub-contractors was one which required work on the relevant platform to be carried out from a mewp. There is also, within the agreed programme of works, a provision for the erection of handrails on the platform.
  19. The notice identifies that the breach of statutory provision identified by the Inspector was of section 3 of the 1974 Act and the Work and Height Regulations 2005, Regulation 4. To my mind, of relevance is that the reason given, as required by section 22, is that the company has failed to ensure, so far as is reasonably practicable, that work at height is planned to avoid the risk of persons falling from height.
  20. So, that was the reason given, and the direction given was that the said activities shall not be carried on by you or under your control immediately, unless the said contraventions have been remedied. The contravention being the planning of the work to avoid the risk identified.
  21. Pausing there, it seems to me, and it is not meant as a criticism of anybody involved at that time on the site, that it is established, applying the approach I have adopted, that as at that time the contravention identified simply did not exist, because that work had in fact been planned and the plan was in existence. Thus, it seems to me, applying the test that I have described, no Employment Tribunal, applying the correct approach, could reach a different conclusion. So, on that basis this notice, as a minimum, would need to be modified. The Employment Tribunal went further and cancelled the notice in its entirety.
  22. The arguments that were put before the Employment Tribunal are to some extent reflected in their reasoning, and related to arguments based on prematurity. A distinction in this context as to whether a notice is premature or unnecessary, it seems to me, is a difficult one to make, and indeed an attempt to do so may well be unnecessary. That flows from my earlier analysis of what the section is directed to, which is to the identification of risk and whether or not that risk warrants the service of a notice at a particular time. There seems to me to be a danger that the arguments on prematurity focus on reasonableness of the decision maker, namely the Inspector, and thereby shift attention from the appeal test to the judicial review test, and that that has the potential for muddle.
  23. The Employment Tribunal, on the basis of the evidence it has on the approach I have indicated, can and should itself, having due regard to the view of the Inspector and the Inspector's expertise, and indeed the expertise of the assessors of the Tribunal, assess the risk as at the relevant date. The assessment of risk is a multi-faceted exercise; some factors will be more important than others, and it seems to me inappropriate for me to seek to set guidelines in that context.
  24. Here, at the heart of the Tribunal's reasoning are paragraphs 19 to 21 of the decision:
  25. "19. We can understand Mr Chilcott's concern faced with an actual accident, an apparent danger and a main contractor whom he did not know. It may well have been the right decision then, but when, the next day, he expressed himself satisfied with the precautions put in place by the appellants it became apparent that his decision had been premature and excessive.
    20. The tools available to an Inspector are limited. A 24 hour temporary order would have been legitimate, but that cannot be done. He had the choice of either making a permanent order, with all the ramifications for the appellants, or doing nothing with the risk that the appellants would allow the sub-contractors back on the platform.
    21. It is our view, with hindsight, that there was no real risk that the AA Group would go back on the platform that night. Mr Campbell, who was the working supervisor, was in hospital. His assistant had taken him to hospital. Mr Chilcott could have obtained an assurance, if necessary in writing, that no-one would work on that handrail at all for 24 hours and that, thereafter, it would be done in accordance with the method statement."
  26. It was argued, in writing and orally, on behalf of the appellant that those paragraphs demonstrated sufficiently that the Employment Tribunal had applied the correct test. To my mind those paragraphs can not be so read. Certainly to my mind, and reading these reasons generously as one must, and in the light of the submissions made to them and the evidence they heard, and thus with the knowledge of those who had been before the Tribunal, it does not seem to me that it can be said that they have properly applied the test as I have described it and as I would understand Sullivan J to have described it. Rather, it seems to me, that they were not focussing, as in my judgment they should, on the point at which the notice was served and determining whether they, if they had been in the position of the Inspector, would have served that notice. Rather, they were looking at the position with the benefit of hindsight, as that expression is commonly used, namely, he may well have been right, he may well have been wrong, but with the benefit of hindsight we can reach a different decision. That was not the process which, in my judgment, they were charged with; their task was to decide what they would have done at that point in time.
  27. So, in my judgment, there is an error of law on the Tribunal's approach. I record that the Inspectorate also do not accept the analysis of the Tribunal of the Railtrack case to be found in paragraph 22 of the Employment Tribunal's finding, but it is unnecessary, in my judgment, for me to deal further with that point which relates to exceptionality and the likelihood of whether a breach will be repeated. In my judgment, issues of that nature are subsumed in the multi-faceted approach I have indicated should be taken on the test that I have sought to identify. It is part of the assessment of the risk at a given point in time.
  28. That leaves the question whether or not I should remit this matter to a differently constituted Employment Tribunal to consider the issue whether or not, in the circumstances of this case, the Employment Tribunal should affirm the notice, but with modifications relating to the lack of supervision by the main contractor of events on the site.
  29. In my judgment, I should not do that. The position, as it seems to me reading paragraphs 16 and 17 of the Employment Tribunal's findings, is that the Employment Tribunal here would not have considered a modification to deal with supervision appropriate. The evidence, in the notes of evidence, to my mind, amply confirms that view, as does the witness statement of the relevant site manager at the time as to what he had seen. Also, it seems to me, that if what was in the forefront of the Inspector's mind had been a lack of supervision, that is what he would have put in his notice, and he did not. What was in the forefront of his mind,in my view understandably, is what is in his notice, namely, that work at height is planned to avoid the risk of persons falling from height. Nobody makes any criticism of the plan that was in place; that plan included elements of supervision. Going back to the test I have indicated I would apply to the actual wording of the notice, namely, could any Employment Tribunal on, effectively, the undisputed and indisputable facts of this case properly reach a conclusion, that this prohibition notice should be affirmed but modified to effectively change its direction to one relating to supervision? My answer is no, it could not. And therefore, albeit that I allow the appeal, I, for the reasons I have given, will cancel this notice.
  30. MR WRIGHT: My Lord, thank you very much indeed for the care in which you received the submissions today on both our parts. May I just have a moment or two to consider the position so far as our side is concerned.
  31. My Lord, there are a number of issues relating to costs still at large. After the appeal was successful before the Employment Tribunal, my learned friend's solicitors indicated they wished to apply for those costs, but held back of course pending this appeal. There are the costs of this appeal itself, and there is a discrete item within those costs; there are the costs of the application for the judge's notes which the respondent today made, which again they include as part of their own costs. I have to say, I hope this does not give away more than I should, that we have won the appeal but the notice has been cancelled, and it is almost irresistible to adopt the starting point that this is a score draw, and invite your Lordship to make actually no order as to any costs, both here and below, on any element.
  32. MR JUSTICE CHARLES: Yes. What is your position on that/
  33. MR MAXWELL-SCOTT: My Lord, we would seek all our costs, because we have always made clear, for us, this case was always about achieving cancellation of the notice, and that is what we have succeeded in. I may need a little time, if your Lordship thinks it necessary, to clarify the fact that there were a number of discussions, both before the first hearing and for today, to the effect that my client's primary concern was about cancellation, and I may need some assistance as to what I can say, developing that point. There is also the separate point of the costs of the notes of evidence which was something that was fairly firmly resisted by the HSC who maintained on a number of occasions to the respondents that they were wholly irrelevant, and thus, the costs were incurred in that regard which might not have been. Keith J allowed our application and said in writing in his reasons that the matters seemed to him to be relevant, and I would submit that they appear to have been regarded by your Lordship as relevant, and you mentioned only a few moments ago in your judgment that the notes of evidence confirmed --
  34. MR JUSTICE CHARLES: I could have managed it without the notes of evidence actually, but I am not saying I did not mention them.
  35. MR MAXWELL-SCOTT: And, of course, the decision your Lordship has taken has not been the narrow one of seeing merely whether there was an error of law, you have looked much more widely at the facts and ultimately you have taken your own decision on the basis of what any Employment Tribunal would have to do if the totality of the evidence were to be heard. In my submission that is not a decision you could ultimately, safely have reached without the notes of evidence.
  36. MR JUSTICE CHARLES: At the moment I think actually the analogy of a score draw is about right in this case, as to where one got to in the range of contentions. You lined up battle lines to say that there was no error of law apparent on the face of the Employment Tribunal's reasons, as to which you have lost. It is partly from questions that I put to the appellant before me that I have been informed, in the context of the decision I ultimately made, as to whether any Employment Tribunal properly directing itself could reach the relevant conclusion. If you had analysed the case on the basis of an appeal you would have ended up going back to the Employment Tribunal, and you would have lost the appeal.
  37. MR MAXWELL-SCOTT: I was not entirely clear what was being suggested.
  38. MR JUSTICE CHARLES: He is saying each side bear their own costs, as I understand it.
  39. MR MAXWELL-SCOTT: Here and below?
  40. MR JUSTICE CHARLES: Here and below.
  41. MR WRIGHT: My Lord, yes. Of course it is relatively unusual for Employment Tribunals to make costs orders, although of course schedule 4 to the 2004 regulations which deals with health a safety appeals does have a free standing costs regime.
  42. MR JUSTICE CHARLES: Is it whether it is unreasonable or is it just free-standing?
  43. MR WRIGHT: It just a free-standing one, my Lord. It does not give you any assistance as to principles, it just gives guidance as to the amounts that can be ordered, or whether they should go for detailed assessments or an agreed sum might be ordered. There is no guidance as to principles, nevertheless, there is a free-standing costs regime. One has to say that it would stick rather in our throats if the respondent today got its costs of any part, bearing in mind that its thrust before the Employment Tribunal was that the notice was premature and unnecessary, and its thrust before your Lordship has been that really there was not --
  44. MR JUSTICE CHARLES: I would not say any more because at the moment I am on your side.
  45. MR WRIGHT: Yes.
  46. MR JUSTICE CHARLES: Sorry, were there any points you wanted to put on negotiations, or further on principles?
  47. MR MAXWELL-SCOTT: I think perhaps if I just say, first, in principle we ought to have our costs below because that decision was to cancel the negatives, and your Lordship has heard, on the basis of the evidence available at that hearing, that any Employment Tribunal, properly informing and directing itself, would in fact have cancelled the notice without any necessity for the appeal to have come forward. So, that is what I say in principle about the costs below. It is clear that the Health and Safety Executive pursued this appeal as a matter of principle because of a dissatisfaction with some of the reasoning of the judge, perhaps more than, or as much as, the decision of this particular set of facts. We have been forced to resist that in order to achieve our ultimate objective of cancelling the notice, so I do say there should be a distinction between the costs below and costs today. I also say there should be a separate provision for the costs of the application for the notice of evidence. I do have a bundle of correspondence that deals with that, I wonder if your Lordship might review that while I took instructions for a couple of minutes about what I can say about negotiations? Would your Lordship mind if I slipped outside?
  48. MR JUSTICE CHARLES: That is all right.
  49. MR MAXWELL-SCOTT: My Lord, I am in some difficulty because it was not perhaps envisaged that the outcome that has been reached today was a particular likely one. We thought either we would win, or perhaps the matter would be remitted, would basically be the two most likely outcomes, although we are very happy that the notice has been cancelled. I am told that there should be attendance notes to the effect that, even before the first hearing, there were discussions between my instructing solicitor and my learned friend's instructing solicitor to the effect that what my clients were interested in was cancellation, and removal from the register primarily, with cost considerations being a very much less important consideration, and that if that was something that was a concern to the HSC, then some formal arrangement could no doubt be negotiated whereby the appeal was allowed, the notice cancelled, and some arrangement reached on costs. But as I do not have the attendance notes with me, because we had not anticipated this matter coming to the fore today, that would certainly form a powerful limb to my submissions that we ought to have all our costs. So, I am not sure how your Lordship wishes to deal with this.
  50. MR JUSTICE CHARLES: Well, I am prepared to accept that you have got that negotiation. But it does seem to me, at the end of the day, you have won the war but you have lost some battles on the way, and the simplest way of dealing with it is that actually each side should pay their own costs, and I am unimpressed with your applications for costs of obtaining the evidence because a factor in going to court was that the Employment Judge said he was not going to give you the notes unless there was a court order, so you were going to have to get an order anyway.
  51. MR MAXWELL-SCOTT: Well, my Lord, the other side were offered the opportunity to agree that my summary of points that we relied upon was accurate, and they said in correspondence that six of the seven bullet points were inaccurate, but, in fact, when the notes came forth from the judge, it turned out that they were accurate. We did not use identical words, but the gist of each of my points and propositions was supported by the judge's note, so that is what I would say about that. And I do rely upon the course of discussions that has taken place, and I say there is a distinction to be drawn between the costs below and the costs today.
  52. MR JUSTICE CHARLES: I have got all those points. I am of the view that it is right in this case, given the fact that the analysis of the parts of the litigation that you have won and the parts that you have lost, and the issue that I think perhaps you admit that you say that neither side were necessarily expecting when you came to this court, namely that the dispute was brought to an entire end, mean that the sensible and correct order is that there should be no order as to costs and both sides should pay their own. That is the order I will make.
  53. Thank you.

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