FEATURE
FORBIDDEN ON WHAT GROUNDS?
Have you ever received a Prohibition Notice from the HSE? If so, what did you do asks Rhian Greaves, Director in the Regulatory team at Pannone Corporate LLP.
In many cases businesses feel there is little option but to accept a Prohibition Notice. Some are wary of challenging the regulator for fear of upsetting the apple cart. Others are put off by the time and costs involved in appealing, whilst others don’t know they can.
A recent Supreme Court ruling involving Chevron North Sea Limited has widened the scope for appeals. This article looks at what happened and what you should do if you receive a Notice.
“NOTICE HAS AN OPERATIONAL IMPACT IN THAT
YOU CANNOT DO EVERYTHING YOU
COULD DO BEFORE.” WHAT ARE PROHIBITION
NOTICES? Prohibition Notices can be served by an inspector who believes the work activity being carried on (or likely to be carried on) involves a risk of serious personal injury. This often happens immediately after an accident but can also result from an inspection.
The Notice may be served on a piece of equipment (e.g. a forklift truck) or a whole area of operation (e.g. a production line).
Notices can be immediate or deferred. Most are immediate and have effect until compliance is achieved or the Notice is successfully appealed. Contravention of the Notice is a criminal offence.
12 WHY ARE THEY SO
SIGNIFICANT? Once served, a Notice has an operational impact in that you cannot do everything you could do before. Equally, it affects you commercially and has financial consequences; changes will be needed in order to comply. Notices also affect your reputation, your details will have been logged on an online database and becomes disclosable when tendering. If left unchallenged, a Notice makes successful defence of a prosecution very difficult, so always be willing to engage.
WHAT HAPPENED TO
CHEVRON? Chevron received a Prohibition Notice from a HSE Inspector concerned at the condition of stairways and staging that provided access to an off-shore helideck. The inspector thought corrosion rendered them unsafe and there was a risk of someone falling through them.
Chevron appealed. They removed the stairways and sent them for analysis, which revealed that all metalwork passed the British Standard strength test and there was no risk of injury from falling. Chevron relied on an expert report setting this out.
The Court had to decide whether an appeal could be decided only on the basis of the information that was reasonably available to the inspector at the time of service, or whether other subsequently available information could also be considered.
The Court decided in favour of Chevron and cancelled the Notice. They said that an appeal was not an appeal against the inspector but against the Notice. If new information is available to help determine whether there was a risk, the Court can and should consider it.
The Court was careful not to criticise the HSE inspector. It said: “His decision often has to be taken as a matter of urgency and without the luxury of comprehensive information”.
“IF LEFT
UNCHALLENGED, A NOTICE MAKES
SUCCESSFUL DEFENCE OF A PROSECUTION VERY DIFFICULT, SO ALWAYS BE WILLING TO ENGAGE.”
WHAT DOES THIS MEAN
FOR YOU? If you think an Inspector intends to serve a Prohibition (or Improvement) Notice, you should talk to them. Engaging with the process is vital. Is there information the HSE has not considered or had access to? Is there context the inspector is unaware of? Are there already plans in place to address the concerns? In short, can you persuade the inspector not to serve the Notice? You will need good knowledge of your systems and swift access to relevant information.
If you are served with a Notice, act quickly. You should review the Notice immediately as you have only 21 days from receipt to appeal. Once you have gathered all the relevant evidence, you should proceed with legal advice to ascertain whether you have grounds for appeal. Remember: an appeal is the only way to remove a Notice from your record.
pannonecorporate.com www.tomorrowshs.com
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