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Written by
on 26 February 2018

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Supreme Court finally resolves tribunal confusion

Grumpy old judgeA recent decision by the Supreme Court should help to reduce time and cost of overturning an incorrect prohibition order.

Businesses issued with HSE prohibition notices in error will find the process of overturning them slightly easier in future. The Supreme Court has recently ruled on a long-running case, establishing the value of expert evidence submitted at the tribunal after a notice has been issued.

What’s the context?

Back in 2013, Chevron was issued with a prohibition notice regarding the safety of three stairwells on one of their oil rigs. An HSE inspector decided that the stairs were corroded, making them unsafe to use – particularly as they formed the primary escape route in an emergency situation. Specifically, the inspector felt there was a significant risk of someone falling from the stairways and staging.

Sometime later, Chevron arranged for an independent third party to test the stairways – a process that was completed seven months after the order had been served. The tests found that the corrosion observed was not as significant as originally believed and that the stairs were still compliant with the relevant British Standards.

Essentially, there was no serious risk of personal injury posed by the stairs.

A number of hearings followed

At a tribunal, Chevron presented the new evidence and argued that the prohibition order had been issued in error. The tribunal agreed and overturned the order.

The case was not entirely settled, however. Because the tribunal was held in Scotland, the decision could not be applied to courts in England and Wales. South of the border defendants was still not permitted to introduce new evidence at a tribunal; prohibition notices would have to be appealed in the same way they always have.

In fact, the HSE later challenged the findings to reinforce their belief that new evidence should not be introduced at the tribunal. Which is how the case ended up in the Supreme Court.

A resolution (of sorts)

The good news for operators is that the Supreme Court agreed with the Scottish tribunal, and they will now be permitted to introduce “new” evidence earlier. Obviously, this is welcome news for anyone issued a prohibition notice in error as it should help them resolve issues more quickly, and at a lower cost.

The only issue not addressed by the Supreme Court was which party should bear the costs following a successful appeal. The judges agreed that prohibition orders issued in error could be extremely damaging to businesses but were unwilling to make the HSE cover any financial losses incurred.

What does this mean for your business?

The bottom line is that any business who receives a prohibition notice can now start the resolution process much faster. By hiring a third party expert, they can collect additional evidence to present at the tribunal, with a view to having the notice overturned more quickly.

Which means that work can restart much more quickly too.

To learn more about health and safety consultancy services and how Veritas Consulting may be able to help your business deal with prohibition and improvement notices, please get in touch.

About 

David Cant is a Director at Veritas Consulting. The SME’s favourite go-to consultant for health and safety know-how. Bucket loads of experience. Fluent in practical advice. Solutionist with a brain you can pick. You can find him across social media on Twitter, Facebook and Linkedin.

David Cant is a Director at Veritas Consulting. The SME’s favourite go-to consultant for health and safety know-how. Bucket loads of experience. Fluent in practical advice. Solutionist with a brain you can pick. You can find him across social media on Twitter, Facebook and Linkedin.

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