Prohibition notices: if it ain't broke, don't fix it!

21 January 2015


Prohibition notices are serious enforcement measures that form part of the recipient's criminal record and can be costly, not just in terms of achieving compliance with their terms, which can be highly prescriptive, but also because of the impact they can have upon reputation and tender opportunities.

In addition, they will be taken into account and may increase any penalties imposed for subsequent breaches of health and safety duties. They should be avoided at all cost.

The decision of the Administrative Court in Rotary Yorkshire Ltd v Hague has, however, cast a reassuring light on the way in which Health and Safety Executive (HSE) inspectors should exercise their power to serve prohibition notices under s22 Health and Safety at Work etc. Act 1974 (the 1974 Act). It confirms that prohibition notices should only be issued where absolutely necessary - and certainly not where the risk in question is "fanciful, trivial or negligible", and can be dealt with by less severe means.

Why should businesses be aware of prohibition notices?

Under the 1974 Act, HSE inspectors have extensive powers to enter and inspect business premises to assess the standard of health and safety compliance at each relevant site. If in the course of such an inspection, they identify that a business' activities involve (or may involve) a risk of serious personal injury to persons at that site, HSE inspectors have a further power to serve a prohibition notice on that business.

At "ground level" the immediate effect of a prohibition notice is that the recipient business, having been informed of its health and safety breach, will be prohibited from continuing the activities in question until the breach has been adequately remedied.

But the implications run deeper than this. With the Environment and Safety Information Act 1988 requiring businesses to keep prohibition notices on their (publicly accessible) health and safety registers for no less than three years, service of a notice on a business not only exposes that business to public scrutiny and criticism, but also blots its copybook which could put it in a disadvantageous position against its competitors, particularly in any public service tenders.

Prohibition notices are therefore not to be taken lightly, and may be challenged if not given careful and appropriate deliberation by the HSE (or local authority) issuing the notice

The case of Rotary Yorkshire Ltd v Hague

This was exactly the issue that came under the spotlight in the Rotary Yorkshire case.

Rotary Yorkshire, a mechanical and electrical sub-contractor on a major Leeds construction site, was served with a prohibition notice following an inspection of one of its "high voltage" rooms by three HSE inspectors. The notice was served due to exposed jointed cables and conductors which could have created a risk of death by electric shock or serious injury from burns, had somebody come into contact with them, if they were live

Although the equipment appeared to be "dead" (i.e. all switches were turned to the "off" position), the inspectors could not be sure of this, and Rotary Yorkshire had no records to prove it.

However, when an authorised person checked the equipment at the site the next day, it was confirmed that the equipment was indeed "dead", and had been on the day of the inspection. Since it transpired that there was no live electrical equipment that could have shocked or burned persons in the high voltage room, had the HSE inspectors made the correct decision in serving a prohibition notice?

Round one - appeal dismissed

The notice was initially upheld when Rotary Yorkshire first appealed against it at an employment tribunal. The tribunal would not accept that the notice had been served prematurely. At the time of the inspection, Rotary Yorkshire could produce no documentary evidence that the equipment was not dead, and so there was a risk (however small) of it being live and therefore creating an on-site risk.

The tribunal only went as far as modifying the notice to say that the equipment was "exposed and cannot be proved dead" rather than "can be energised and made live".

Rotary Yorkshire appealed to the Administrative Court.

Round two - strike out

In a victory for common sense, the appeal was allowed and the prohibition notice was quashed. The court held that the notice had not been the only, or indeed the most appropriate, means of dealing with the situation.

The service of a prohibition notice can only be justified by the presence of a risk that is more than "fanciful, trivial or negligible". For example, in Railtrack Plc v Smallwood, following the Paddington railway disaster in 1999, a prohibition on running trains on lines in the area was justified. It would have been "unthinkable" to pose the risk of similar accidents occurring in the absence of sufficient preventative post-disaster measures being taken.

By contrast in Rotary Yorkshire's case, there was no actual risk beyond the inspectors' speculation that the electrical equipment was live. Had the authorised person been on site to prove that all switches were dead on the day of inspection, no prohibition notice would have been served.

The court held that it was inappropriate for the HSE inspector to have jumped to a premature conclusion that could not be supported as much as it could not be disproved. The inspectors could (and should) have put a temporary measure in place to keep the high voltage room undisturbed, pending the arrival of the authorised person to confirm the situation the next day.

On this basis, taking into account the serious repercussions of serving prohibition notices on a business, the notice was not deemed as being the only means of dealing with Rotary Yorkshire's situation and was accordingly struck out.

Going forward: what does this mean for businesses?

The Administrative Court's decision means that HSE inspectors might be more inclined to consider the alternatives before they serve prohibition notices - is there in fact a risk, or a relatively small risk that could be dealt with in a less draconian manner? Or is there a real risk of serious injury being posed for which it is proportionate to impose detrimental commercial consequences?

A word of warning though, a more cautious approach by the HSE isn't necessarily better news for businesses. An alternative way of dealing with a health and safety issue could be service of an improvement notice. In terms of impact on a business, while this normally allows time for compliance, this may be no less draconian in commercial impact since this also forms part of a company's record.

The most practical approach seems to us to be:

  • Pre-empt the strike. A self-aware and self-critical approach to health and safety will ensure you identify and address potential issues so no ongoing risks exist when an inspector calls. Undertake an immediate audit if there has been an accident and a visit is likely. Ensure that the inspector is aware of any controls that you have put in place to ensure that something that may be flagged cannot and will not in fact pose a risk to others. If there is no risk he has no cause.
  • If something is identified by the inspector, don't risk a notice by being defensive. Acknowledge the potential issue and while the inspector is there, put in place any arrangements needed to protect pending further investigation or action. If these are sufficiently robust, immediately addressing the concern may avoid the enforcement notice pad being pulled out. A responsible attitude can go a long way towards ameliorating your position.
  • If the inspector still pulls out the pad, before he puts pen to paper you might then take the opportunity to remind him of the Rotary Yorkshire decision!
  • If a notice is served when you believe it shouldn't have been, consider obtaining specialist advice and appealing.

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