UK Supreme Court resolves conflicted decisions in Rotary Yorkshire and Chevron

The judgment in HM Inspector of Health & Safety v Chevron North Sea Ltd. also resolves the conflicting decisions of the Court of Appeal in Hague (One of Her Majesty’s Inspector of Health and Safety) v Rotary Yorkshire Ltd EWCA Civ 696 and the Court of Session in Chevron CSIH 29.

In 2013, during a routine inspection of the Chevron Captain Floating Production Vessel (an oil installation in the North Sea), an HSE Inspector served a Prohibition Notice under section 22 of the 1974 Act in which it was said that the stairways and gratings providing access to the helideck of the installation were corroded and thereby gave rise to a risk of serious personal injury.

Chevron appealed against the Prohibition Notice to the Employment Tribunal under section 24 of the Act. The Tribunal upheld the appeal and cancelled the Notice, relying on an expert report obtained by Chevron some time after the inspection which demonstrated that the stairways and gratings met the relevant British Standard and thereby gave rise to no risk.

HSE appealed to the Inner House of the Court of Session. The appellant, relying on the judgment of the Court of Appeal in Rotary Yorkshire, argued the Tribunal had not been entitled to take into account evidence of the expert report, which had not been available to the inspector at the time of service of the Notice. On the contrary, the respondent argued that section 24 conferred an unrestricted right of appeal on the facts, and that all relevant facts could be taken into account, including those which had become available after service of the Notice. The Inner House unanimously refused the appeal.

The appellant thereafter sought and was granted leave to appeal to the Supreme Court. Before the Supreme Court, the appellant argued that section 24 conferred a restricted right of appeal, in which the Tribunal was only entitled to take into account material which was, or could reasonably have been, known to the inspector at the time the Notice was served. The appellant again relied on Rotary Yorkshire. It was further argued for the appellant that the interpretation contended for by the respondent was contrary to the purposes of the 1974 Act and would somehow undermine the effectiveness or purposes of prohibition notices, or might inhibit inspectors from serving notices. The Court rejected this argument.

The Supreme Court held that the Inner House had correctly interpreted section 24 and unanimously dismissed the appeal: “n an appeal under section 24, the tribunal is not limited to considering the matter on the basis of material which was or should have been available to the inspector. It is entitled to take into account all the available evidence relevant to the state of affairs at the time of service of the prohibition notice, including information coming to light after it was served” .

Peter Gray QC and Barry Smith, both of Compass Chambers, represented the respondent before the Inner House and Supreme Court.