When a prohibition notice is issued against more than one person, can a party who exercises no direct control over the activities appeal it?
Prohibition notices must contain the relevant statutory provisions which the HSE inspector believes have been (or are being) contravened.
In a recent High Court case (on appeal from the Employment Tribunal) the Judge dismissed prohibition notices which had been issued on the basis that both owners of a construction site were in control under Section 4 Health and Safety at Work Act 1974 (HSWA) which applies where parties have any control of premises.
The issue was that section 4 had not been relied on by the HSE inspector in the prohibition notices. Instead he had cited Sections 2 and 3 HSWA. The Judge therefore concluded that the correct test was in fact whether the appellants had 'sole control' pursuant to Sections 2 and 3 HSWA.
Commentary
A prohibition notice can have practical and commercial impacts upon its recipient (including the need to reveal the notices when participating in procurement). It may also lead to fines and criminal prosecution if not complied with. Parties who receive prohibition notices may well consequently want to challenge them where the activities are not under their control and they are themselves not at fault.
For a party which believes it has been unfairly served with a prohibition notice, the outcome of this case highlights the importance of establishing that the statutory provisions relied on in a prohibition notice are correct and applicable.
In particular, if Section 4 HSWA is not identified in a prohibition notice, a party who does not have 'sole control' of the relevant works should consider appealing on the basis that it does not meet the test of control under Sections 2 and 3 HSWA.
It is therefore crucial for such parties, for example members of consortia or joint ventures on construction projects, to double check whether they meet the relevant scope of “control” as cited in the prohibition notice. If a party considers that it does not have the requisite control, it is worth seeking specialist legal advice to see whether an appeal is possible.
Facts
Mr Kingsley and his wife (Ms Hara) were carrying out building works to convert an office block into flats. The property was purchased with funds from Ms Hara's father but Ms Hara was the registered proprietor.
After complaints from local residents, the HSE carried out a number of inspections following which it concluded that the works were being carried out in a dangerous fashion. Prohibition notices were served; some on Mr Kingsley and some on Ms Hara.
Both Mr Kingsley and Ms Hara appealed the prohibition notices to the Employment Tribunal but were unsuccessful. Mr Kingsley (but not Ms Hara) was subsequently prosecuted for his failure to comply with the prohibition notices.
On appeal to the High Court, the Judge concluded that the Employment Tribunal had erred in law by applying the wrong test of the degree of control each party was required to have over the works in order to be in contravention of the HSWA as cited in the prohibition notices.
The prohibition notices served on Mr Kingsley and Ms Hara identified Sections 2 and 3 HSWA but crucially did not identify Section 4.
Section 2 covers the duty of employers to their employees and Section 3 covers the duty of employers and the self-employed to persons other than their employees. A person has to be in a position to exercise complete control over the matters to which such duties extend. However, Section 4 is broader in its application and applies to persons who have 'to any extent, control of premises'.
As the prohibition notices served on Mr Kingsley and Ms Hara did not contain a reference to Section 4, the Judge held that the Employment Tribunal should have looked at whether the appellants had joint sole control and not whether they had some degree of control over the works.
The Judge concluded that that Mr Kingsley had sole control of the site. Evidence which was relied upon included that the builders at the works referred to him as 'boss', individuals had slept on the premises under his authority and that he was in charge of day to day management of the work force. The Judge therefore concluded that if the correct test pursuant to sections 2 and 3 had been applied, the prohibition notice would have been correctly served on Mr Kingsley.
In contrast, the Judge held that Ms Hara did not have any control over the works on site. He relied upon the findings of fact that she was never physically present on site, never gave any directions to the workforce and was found to have had 'mere legal ownership'. The Judge concluded that this did not bring her within the definition of 'sole control' for Sections 2 and 3. As the prohibition notice had not cited Section 4, the Judge upheld the appeal and dismissed the prohibition notice against her.
The author Charlotte Whitaker is a member of Burges Salmon's Health and Safety team led by Ann Metherall.