Health and safety – Inspector – Prohibition notice – Appellant health and safety inspector issuing prohibition notice to stop respondent carrying out further roofing works – Employment tribunal deciding to cancel notice – Appellant appealing against decision – Whether tribunal applying wrong test – Whether tribunal wrongly finding respondent’s system of work reasonably safe – Whether tribunal wrongly interpreting guidance on best practice – Whether tribunal erroneously finding respondent’s method of work of industry standard – Appeal allowed
The respondent company contracted with a client to carry out maintenance works to the roof at its store in Berse Road, Wrexham, which included numerous fragile roof lights. The respondent engaged self-employed contractors to carry out the work. The appellant health and safety inspector made an unannounced visit to the premises. He was not satisfied with the safety arrangements for the work and issued a prohibition notice, under section 22 of the Health and Safety at Work Act 1974, prohibiting the respondent from carrying out further roofing works at the premises until it had remedied the matters set out in the notice. On the respondent’s appeal under section 24 of the Health and Safety at Work Act 1974, the employment tribunal cancelled the prohibition notice. The inspector appealed under section 11 of the Tribunals and Inquires Act 1992.
The issues for determination were whether the tribunal had erred in law in: (i) setting out the correct test, which was that it should base its decision on the information the inspector had known, or ought to have known, it had failed to apply it; (ii) its construction of regulation 6 of the Work at Height Regulations 2005 (SI 2005/735), in finding that the respondent’s system of work had been reasonably safe; (iii) having wrongly determined that the Health and Safety Executive’s guidance (HSG33) had been best practice, whereas it was a guidance document and had wrongly interpreted HSG33; and (iv) having determined that the method of work had been the industry standard method.
Held: The appeal was allowed.
(1) Despite its intention to do so, the tribunal had failed to determine whether it would have issued the notice based on the information that the inspector had known, or ought to have known, when he had issued the notice. Instead, it had determined that it would not have done so based on the facts about the system of work and training established following the hearing.
(2) On a true construction of regulation 6, the provision of training could only fulfil an employer’s safety obligations where it had not been reasonably practicable to provide work equipment to reduce the risk of a fall or to minimise the distances and consequences of a fall. The court interpreted the tribunal’s finding that the system of work had been reasonably safe as shorthand for a finding that the method of work, together with training, had complied with the respondent’s legal obligations. However, there had inevitably been a possibility of a contractor falling through an uncovered fragile roof light if he had been working adjacent to them or passing across a roof containing them. The respondent’s method of work had not eliminated that risk because training could not eliminate the possibility of a fall through an uncovered roof light due to illness, inadvertence or stupidity on the part of the trained contractor. The tribunal’s failure to recognise that, subject to reasonable practicality, the respondent had been obliged to provide sufficient work equipment to prevent a fall or minimise the distance and consequences of a fall had been a material error of law. In the absence of a contention by the respondent that it had not been reasonably practicable to provide such equipment, it was inevitable that the tribunal would have found that the respondent had been in material breach of regulation 6(3), if it had applied the law correctly: Health and Safety Executive v Polyflor [2014] EWCA Crim 1522; [2014] ICR 1142 applied, Holtum v W J Cearns Ltd (23 July 1953, unreported), R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and R v Tangerine Confectionery Ltd (2012) 176 JP 349 considered.
(3) HSG33 provided guidance to employers in complying with their legal obligations under the Work at Height Regulations. They were not themselves legislation. Having found that the respondent’s method of work had complied with HSG33, it was not necessary for it to decide whether HSG33 had represented a higher standard than legal compliance. Further, there had been no error of law in the tribunal’s approach to the interpretation of HSG33. It had been entitled to find that the respondent had not been obliged to provide continuous physical barriers demarcating the safe areas for the contractors to walk.
(4) While it was obviously correct that every roof was different, there might still be a standard industry practice for flat roofs containing fragile roof lights. The tribunal had been entitled to prefer expert evidence to that effect. However, it did not follow from the fact that the system of working on a roof was standard industry practice that that method of work necessarily complied with the 1974 Act or Work at Height Regulations either in general or in the case of any specific roof.
(5) In all the circumstances, the tribunal had failed to approach its task based upon the information that the inspector knew or should have known when he issued the notice. Further, even if the inspector had been aware of the method of work and training established by the evidence at the hearing, it was not open to the tribunal to find that it would not have issued the notice. There remained a risk of serous personal injury if a contractor fell through a fragile roof light that the respondent ought to have minimised by providing working equipment that would, so far as reasonably practicable, either eliminate a risk of falls or minimise the distance and consequences of a fall. Given that the respondent had not contended that provision of such equipment was not reasonably practicable, it followed that it was in breach of sections 2 and 3 of the 1974 Act and regulation 6(3) of the Work at Heights Regulations.
Cyril Adjei (instructed by the Health and Safety Executive) appeared for the appellant; Gerard Heap (instructed by Lupton Fawcett Denison Till, of Leeds) appeared for the respondent.
Eileen O’Grady, barrister
