THE INDUSTRIAL TRIBUNALS

CASE REF:	205/16

APPELLANT:		Cullen Asbestos Limited

RESPONDENT:		Health & Safety Executive for Northern Ireland 

DECISION 
The unanimous decision of the tribunal, on foot of the appeal by the appellant, is that the Prohibition Notice, dated 3 December 2015, issued by the respondent is affirmed.

Constitution of Tribunal:
Employment Judge:	Employment Judge Drennan QC
Members:			Mr H Stevenson
				Mr J Law

Appearances:
The appellant was represented by Mr D Coll, Chartered Chemist.
The respondent was represented by Mr D Reid, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Issues

1.	The issue for the tribunal to determine was as follows:-

“Whether the Prohibition Notice served on the appellant by the respondent under the Health & Safety at Work (Northern Ireland) Order 1978, on 3 December 2015, should be cancelled or affirmed; and, if the tribunal affirms the Prohibition Notice, whether it should do so in its original form or with such modifications as the tribunal may, in the circumstances, think fit.”

Reasons

2.1	The tribunal heard oral evidence, on behalf of the respondent, from Ms Nancy Henry, Dr Rowland Jones, Ms Kellie McNamara, Ms Christine Edwards; and, on behalf of the appellant, from Mr Stephen Adams, Mr Raymond Cullen and Mr David Coll.  Mr Gareth Roddy had provided witness statement(s) to the appellant and the respondent; but the tribunal was informed, at the outset of the hearing by the representatives that Mr Roddy was not going to be called by either the appellant or the respondent; but it was agreed the said witness statement(s) would be admitted into evidence, by consent, without formal proof, but subject to the caveat that the weight, if any, to anything stated therein would be a matter for the tribunal (see later).  

	Having considered the evidence given to the tribunal by the said witnesses, the documents contained in the ‘trial bundles’, as amended, to which the tribunal was referred during the course of the hearing, together with the written submissions made by the representatives of the parties and provided to the tribunal, following the conclusion of the hearing, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the appellant’s said appeal, as set out in the following sub-paragraphs.

2.2	The appellant is an asbestos removal contractor licensed by the respondent to carry out asbestos removal.  In or about late 2015, the appellant was contracted, following a tender exercise, to perform asbestos removal works at 90 Ballybarnes Road, Newtownards (‘the site’), by the principal/main building contractor, Gareth Roddy, who was engaged by the owner of the said site to undertake the refurbishment and extension of the said premises.  This work included the demolition of outbuildings.  All of the buildings outside contained asbestos and one of the outbuildings contained licensed asbestos.

2.3	Ms Nancy Henry, Principal Inspector of the construction group of the respondent, gave evidence to the tribunal, which evidence, insofar as relevant to the determination of this appeal, the tribunal accepts, in relation to various relevant ‘background’ issues relating to asbestos and the system of removal in Northern Ireland, as referred to below, none of which, in the course of its evidence, was strongly challenged by the appellant:-

“Background information to asbestos containing materials

There are three main types of asbestos which have been commonly used crocidolite (blue), amosite (brown) and chrysotile (white).  All types of asbestos are dangerous but crocidolite and amosite asbestos are known to be more hazardous than chrysotile.  Although asbestos is a hazardous material, the main risk to health occurs when fibres become airborne and are then inhaled.

Asbestos containing materials only release fibres into the air if they are disturbed and the greater the disturbance, the greater the risk to health.

Asbestos diseases can take many years to develop (average 20 – 40 years) and cause two main types of damage:

•	cancer, eg mesothelioma and lung cancer; and

•	fibrous thickening of the lung, eg asbestosis

There is no known safe threshold of exposure, therefore as the frequency, duration and level of exposure increases, so does the risk of developing health issues.  Once the asbestos-related disease has been diagnosed, the person is left with the prospect of a debilitating impact on their health. 

Asbestos-related deaths in Northern Ireland

Breathing in asbestos fibres can lead to asbestos-related diseases, which kill more people each year than any other single work-related illness.  The last figures available for asbestos-related deaths in Northern Ireland are for the year 2013/14.  In this period 63 asbestos-related deaths were registered, two more than in 2013.

These are those deaths where asbestos and/or mesothelioma have been mentioned on the death certificate either as a primary or secondary cause.

Asbestos is also known to cause lung cancer although this cannot be directly attributable to inhalation of asbestos fibres, as it can arise from other causal factors such as smoking.

...

Asbestos licensing

Work with the most hazardous forms of asbestos can only be carried out by companies who have obtained a licence for such work from the Health & Safety Executive for Northern Ireland.

Asbestos licensing is a permissioning regime which is in addition to the general framework of health & safety law.

It is used when normal forms of regulations are not sufficient and where the extra demands imposed by the regime are justified by the benefits it brings.  Permissioning regimes build on the fact that the legal duty to manage risks lies with the organisation that create them.  Consequently exemplary management standards and arrangements are expected of license-holders, in addition to the specific knowledge required to carry out the work with asbestos.

A licence-holder has to be able to demonstrate excellent knowledge, competencies and skills involved with asbestos work, including:

•	risk assessments, plans of work and work methods;

•	training for employees, supervisors and managers;

•	personal protective equipment (PPE) and respiratory protective equipment (RPE);

•	enclosures for asbestos work;

•	controlled techniques for asbestos work;

•	decontamination and clearance

Before the asbestos removal work starts there must be a written plan of work (often also called a method statement) which gives practical details on the specific work methods and control measures for a particular job at a specific location. 

The enclosure

Before the removal of the asbestos material starts a physical barrier is built around the work area and this is designed to contain any asbestos dust and waste arising from the work.  This is called an ‘enclosure’ and is typically built from a wooden frame and polythene sheeting.  Access to the enclosure is regulated through entrance and exit openings known as ‘airlocks’ and these allow control of movement of personnel, waste and equipment in and out of the work area.  Anyone entering or working inside an enclosure must wear suitable protective clothing and respiratory protective equipment and must thoroughly decontaminate themselves on leaving the enclosure.

The enclosure should be effectively sealed and as airtight as possible to prevent asbestos fibres being released during the work.

Creating negative air pressure inside the enclosure

Mechanical extract ventilation (using equipment commonly called ‘a negative pressure unit’ NPU) is used to create negative pressure within the enclosure so effectively drawing in air through the airlocks and any remaining gaps (no construction method will give an absolute airtight seal).  This ensures that the airflow through any leaks in the enclosure will be inwards rather than outwards, to ensure that the asbestos dust stays inside the enclosure.  The NPU should normally be located outside the enclosure with the enclosure sealed around the end of it.

Decontamination of workers

All personnel who enter enclosures are likely to become contaminated with asbestos and therefore need to decontaminate themselves when they leave.  The purpose of the decontamination is to prevent the spread of asbestos outside the enclosure.  

There is a specific process where the workers use the personnel airlock to change out of their working disposal overalls and boots, into a different coloured set of disposal overalls and footwear which has not been used inside the enclosure.  They keep their respiratory protective equipment on at all times.  The workers then walk to the main decontamination unit (commonly referred to as a DCU).

The decontamination unit (for the decontamination of the workers)

The decontamination unit must be working on site at the very start of the job, and while the enclosure is still active, eg during removal operations and when the analyst is carrying out four stage clearance.  The DCU is split into three distinct compartments, the dirty end, shower block and clean end.  There is a specific process which workers must go through which involves removing all of their clothing in the dirty end but still keeping their respirator on.  Moving into the shower and thoroughly showering themselves after which the respirator can be removed.  Finally going into the clean end to dress into their ordinary domestic clothes.  Every time the workers leave the enclosure they must go through this specific decontamination process, eg for breaks, to use toilet facilities, at the end of their working day.  

Legal requirements covering for the need for the NPU and the decontamination unit (DCU) so both are working at the same time

The legislative requirements covering the use of the NPU and DCU are summed up as follows:

•	The NPU must be running before any work starts and continuously throughout the stripping work, including times when the personnel are not on site.

•	If the NPU cannot be left running outside normal work hours it should be left on at least one hour at the end of each shift.

•	The DCU must be taken on the site on the first day that the workers arrive.

•	It must be set up and fully operational before any work activity starts.

•	The DCU must be checked each day before work begins to ensure it is fully operational and these checks recorded.

•	The analyst has to check that the DCU is operational and clean as part of the first stage of the four stage clearance process.

•	The DCU must be fully operational throughout the four stage clearance process.

•	The last job undertaken by the analyst is the clearance of the DCU.  It is inspected and air tested and if it passes then a separate inspection certificate is issued.

Relevant sections from the Control of Asbestos at Work Regulations (Northern Ireland) 2012 and associated Approved Code of Practice in regard to this case covering the use of the NPU and the DCU include the following:-

	...

[The relevant extracts of the said sections referred to by Ms Henry in her evidence are referred to in detail in Paragraph 3 of this decision.]

	...

Asbestos removal techniques

The primary objective in asbestos removal work is to prevent or minimise future release, ie remove the asbestos in a safe manner.

Four stage clearing process

Once the removal of the asbestos has been completed and all the waste and other non-essential items (eg tools, materials, etc) have been removed, the enclosure and airlocks are ready for their final clean and preparation for the four stage clearance process.  This is where an independent, impartial UKAS accredited analyst assesses the premises to determine whether they are thoroughly clean and fit for re-occupation.  This is a vital component in the asbestos removal work and it provides crucial reassurance and security to the subsequent building users.

The four stages are:

Stage 1: preliminary check of site condition and job completion

Stage 2: a thorough visual check inside the enclosure work area

Stage 3: air monitoring 

Stage 4: final assessment of the area after the enclosure is dismantled

Once all four stages of the clearance procedure have been completed satisfactorily, the analyst will issue a certificate of re-occupation.  After this the final stage is the clearance of the decontamination unit.  Once this has been completed satisfactorily it can be moved off site.

... .”

2.4	On 3 December 2015, the asbestos removal works at the site were substantially completed and were awaiting the said ‘four stage clearance’ by the independent analyst.  This work, paid for by the appellant, was to be carried out by Mr Charlie Creevy, who is employed by REC Limited.  This is a company which is UKAS accredited to undertake the said four stage clearance process.  Mr Creevy did not give evidence to the tribunal.  

2.5	On 3 December 2015, Dr Rowland Jones, accompanied by Ms Kellie McNamara, who are both inspectors with the respondent, attended on the site.  Dr Jones, who has relevant qualifications, has been an Inspector of Health & Safety with the respondent since in or about April 1981 and has specialised knowledge in asbestos, ionizing radiation and occupation hygiene.  Ms McNamara, who also has relevant qualifications, has been an Inspector with the respondent since in or about November 2013, carrying out inspection and enforcement duties on construction sites and licensed asbestos removal works.  Ms McNamara, also accompanied another inspector with the respondent, Ms Christine Edwards, on a previous visit to the site on 1 December 2015.  It is to be noted that on that visit, no Prohibition Notice was issued by the said inspectors.  However, since the legislative provisions and relevant case law, as set out later in this decision, required the tribunal to determine this appeal on the basis of the relevant risk at the time of the issue of the Prohibition Notice, issued on 3 December 2015, the subject-matter of the appeal, the tribunal found no assistance, for the determination of this appeal, from what may or may not have been found by the inspectors at the site at the time of the visit of the said inspectors on 1 December 2015.  

2.6	On arrival at the site, on 3 December 2015, the inspectors, Dr Jones and Ms McNamara, met Mr Stephen Adams, the appellant’s site supervisor, who effectively managed the site for the appellant in that role.  They walked the site with Mr Adams.  During the inspection, the inspectors made a number of observations about the state of the site; but, again for the purposes of this appeal, the crucial issue, which was not disputed, was that the negative pressure unit (‘NPU’) was running but the decontamination unit (‘DCU’) was not able to be used because there was no power to it.  At the time of arrival on the site, there were other workers on the site doing non-asbestos work; but, in particular, there were also present on the site Mr Adams, another employee who worked with him, and Mr Cullen Junior, son of Raymond Cullen, who did not give evidence to the tribunal, who were preparing the site for the arrival of Mr Creevy to do the four stage clearance analysis.  Indeed at or about the time of the arrival of the inspectors onto the site, or shortly thereafter, Mr Creevy also arrived to do his said analysis.  In his clearance certificate for the said visit, on 3 December 2015, Mr Creevy confirmed he found, insofar as relevant, the DCU was not running and he therefore failed the site at the first stage of the four stage clearance.  Indeed, as seen above, this was not disputed.  In view of the issuing of the Prohibition Notice by the inspectors (see later) Mr Creevy, having been so informed by the inspectors, would not have been able, even if he wished to do so, to complete his four stage clearance analysis.  

2.7	Dr Jones gave oral evidence confirming his written evidence, as set out in his witness statement, namely, in particular:-

“I saw a single generator on the site and at this time I saw that this was running only the asbestos removal enclosure negative pressure unit and lighting.  I was told by Stephen Adams that this generator was not able to run both the asbestos removal enclosure services including its negative pressure unit and lighting and the decontamination unit at the same time.  I was told by Stephen Adams that the generator was being swapped between the negative pressure unit and the decontamination unit but could not be used for both at the same time.  Stephen Adams also told me that there was no usable means electric power on site and that he had to use a generator.  At no time was I shown that both the DCU and the services to the enclosure [NPU, lighting] could be run at the same time.  I saw him switch the generator from the asbestos removal enclosure using its lighting and negative pressure unit to stop working, to power the decontamination unit. The decontamination unit became functional on this switchover but the enclosure was no longer subject to any negative pressure control to prevent escape of asbestos fibres from within the enclosure ... .”

Ms McNamara similarly gave oral evidence confirming her written evidence, as set out in her witness statement, namely, in particular:-

“Both myself and Dr Jones noted that the DCU was not running and raised this with Stephen.  Stephen explained to both myself and Dr Jones that as a result of an issue with the main supply on site which kept tripping the power out, Cullen Asbestos Ltd had brought a generator on site to power the equipment.  However the generator supplied was not powerful to power both the DCU and negative pressure unit (NPU) at the same time and so only the NPU could remain operational at that time.  

I was standing beside Dr Jones and I heard him ask how he intended to facilitate the works to be undertaken by the analyst which would require both the NPU and DCU running at the same time and I heard Stephen tell Dr Jones that he did not know.”

Although, as set out above, there were some differences between the evidence given by Dr Jones and Ms McNamara, the tribunal was satisfied that any such differences did not alter the thrust of their evidence, which was similar as to the situation on the site, as found by them and as explained to them by Mr Adams.

The main points of Dr Jones’ evidence were, to a limited degree, confirmed in the ‘very rough notes’, he had put in his notebook, shortly after he had left the site, of what he was told and found at his inspection.  Although these notes were not determinative of this appeal, the tribunal found it most unsatisfactory that proper formal notes were not drawn up by Dr Jones, either at the time of his inspection or immediately thereafter, of what was found on inspection and had been said to him by relevant employees during the course of the inspection.  Writing up of proper notes at the relevant time is essential, in the opinion of the tribunal, given there may be an appeal and disputes may arise to be determined, on appeal, about such matters; and also having regard, whenever any Prohibition Notice is issued, to the potential major consequences, including reputational damage, for the party issued with the Notice.  Consideration should be given by the respondent to issuing instructions/guidance for use by inspectors on such inspections in relation to the taking of notes, upon any such inspection.

2.8	Dr Jones, in his evidence, also confirmed, and which the tribunal accepts – ‘that the first operation when a license contractor arrives on site is to position the decontamination unit on site and ensure it is fully operational before any other work begins.  Where work is to be re-started, on arrival at the site, the contractor must ensure that the decontamination unit is fully operational before anything else happens.  At no time should the decontamination unit not be working while licensable asbestos removal work including clearance by a UKAS accredited analyst is being carried out.  Mr Stephen Adams the site supervisor for Cullen Asbestos Ltd and all asbestos removal operatives should know this as it is an integral part of their training’.  Indeed, Mr Adams, in his evidence, did not dispute this evidence given by Dr Jones.  

2.9	It was not disputed by the parties that there was no asbestos removal work being carried out at the site at the time of the inspection, as it had been completed.  However, the analyst, who still had to start the four stage clearance, needed to have access to the full facilities of the decontamination unit before he could carry out his work to the required standard.  As set out above, Mr Adams, Mr Cullen’s son, and the other employee of the appellant who were on site preparing for the arrival of Mr Creevy to do this work and which the analyst arrived to do during the course of the inspection by Dr Jones and Ms McNamara.

2.10	As a consequence of what Dr Jones had seen and had been told by Mr Adams, as referred to previously, Dr Jones, with the agreement of Ms McNamara, decided to issue a Prohibition Notice, pursuant to the Health & Safety at Work (Northern Ireland) Act 1978.  He gave the said Notice to Mr Adams and informed Mr Creevy that such a Notice had been issued.  This Prohibition Notice required all work to stop on the site, including the work of Mr Creevy the analyst.  Dr Jones emphasised in evidence, which the tribunal accepts, that he took the decision to issue the Notice because he was satisfied, as an inspector of long experience in this area of asbestos removal, that the lack of power to the DCU in the circumstances as found by him on his inspection, as referred to previously, ‘gave risk to a reasonably foreseeable situation that a person working on the site, including the analyst, could be exposed to asbestos and inadvertently cause its spread by not being able to decontaminate without removing the negative pressure control which prevents asbestos fibre escaping from the enclosure and hence facilitating its spread.  He also maintained, in evidence, which the tribunal accepts, any risk from asbestos exposure has to be taken seriously as even a technical breach can have serious consequences, and it was necessary to ensure all safety mechanisms are in place to avoid risk of exposure and license asbestos removal contractors would know this and the need to have attention to detail’.

	In these circumstances, Dr Jones was satisfied the activities involved/would involve a risk of serious personal injury and a Prohibition Notice was required to be issued.  Dr Jones explained that such Prohibition Notices are not issued frequently by the respondent.  He referred to issuing one a year on average and explained such Prohibition Notices can be for all sorts of different reasons and are not confined to the area of asbestos removal and, depending on the precise circumstances, some can be remedied very quickly (eg fixing of a faulty ladder on a construction site).

	Dr Jones accepted, in evidence, that the generator in use on the site when he was present was sufficient to operate the NPU on its own and the DCU on its own; but, as he was informed by Mr Adams, it could not operate both at the same time.  As this had been said by the site supervisor, he had no reason to doubt what he had been told by him.  Indeed, there was no proper evidence before the tribunal to suggest that the generator was in fact powerful enough to operate both at the same time, other than a suggestion by Mr Cullen, that the generator could do so.  If Mr Cullen was correct, it did not explain why Mr Adams had said exactly the opposite or why both units were not operated by the generator at the time of the inspection or indeed subsequently.

2.11	The Prohibition Notice, dated 3 December 2015, issued by Dr Jones under Article 24 of the Health & Safety at Work (Northern Ireland) Order 1978 stated that the removal of asbestos work at the site – ‘ ... carried on by you/likely to be carried on by you/under your control, at 90 Ballybarnes Road, Newtownards, Co Down, BT23  4PO, or will involve, a risk of serious personal injury, and that the matters which give rise/will give rise to the said risks are : there is insufficient power to operate the DCU and NPU on site at time of visit and that the said matters involve/will involve contravention of the following statutory provisions. : Control of Asbestos at Work (NI) Regulations 2012 because ‘the DCU could not be used whilst the NPU and ancillary equipment was switched on’.  The Prohibition Notice also stated that the said activities could not be carried on unless the said contraventions and matters had been remedied.

	It also directed that the measures specified in the Schedule, which formed part of the Prohibition Notice, required to be taken to remedy the said contraventions or matters.  

	The Schedule to the said Prohibition Notice stated:-

“No work to be carried out with licensable asbestos materials until there is sufficient power to run the DCU, NPU and ancillary equipment on site at the same time.”

2.12	The Prohibition Notice having been given to the appellant’s site supervisor, Stephen Adams, no further work was carried out on the site on that day.  Dr Jones and Ms McNamara, having issued the said Prohibition Notice to Mr Adams and after informing Mr Creevy of the said Notice and its terms, then left the site.  Mr Adams said, in evidence, he contacted Mr Raymond Cullen, the Managing Director of the appellant, by telephone and informed him the said notice had been issued and work had had to stop at the site (see later).

2.13	Approximately two hours after Dr Jones had issued the Prohibition Notice and left the site, Mr Cullen, who had not been present on the site at the time of the visit of Dr Jones and Ms McNamara, contacted Dr Jones and told him the full mains electricity had been restored to the site and assured Dr Jones this meant the DCU and NPU could both be fully working at the same time.  Dr Jones accepted, at face value, what Mr Cullen had said to him.  He did not ask him for further details on how this had been achieved.  He did not consider it necessary for him and/or Ms McNamara to re-visit the site.  Dr Jones was satisfied, in light of what he was told by Mr Cullen, the measures required to remedy the contraventions, as set out in the Prohibition Notice, had now been complied with and work could therefore be resumed on site.  As stated previously, Mr Creevy, in a subsequent visit to the site, successfully carried out and completed the four stage analysis of the site.

	In a letter dated 8 December 2015, Mr Cullen wrote to the respondent, in which he confirmed, inter alia, ‘there was adequate power, to drive all units on site, the very next morning’.  The use of this phrase ‘the very next morning’ was challenged by the respondent’s representative to suggest the most recent contraventions had not been resolved on the afternoon of 3 December 2015, as Mr Cullen told Dr Jones.  Mr Cullen could not explain why he had said this; but, not without some hesitation, the tribunal is prepared to accept that this reference to the ‘very next morning’ may have been a reference by Mr Cullen to when the work on the site actually resumed, since, following the Prohibition Notice, all work on the site had stopped on 3 December 2015.  

2.14	As set out above, central to the decision by Dr Jones to issue the Prohibition Notice was what he and Ms McNamara stated, in evidence, they had each found on the site at the time of their inspection and were each told, in particular, by Stephen Adams, the Site Supervisor about the electric power to power the DCU and NPU, as set out in some detail in Paragraph 2.7 of this decision.  Further, in view of the significance of this evidence, for the determination of this appeal, it was necessary for the tribunal to consider, in some detail, the evidence of Mr Adams, in contrast to that given by Dr Jones and Ms McNamara.  

2.15	It has to be stated, from the outset, that Mr Adams was a most unsatisfactory witness and his evidence to the tribunal, as referred to below, was inconsistent and, at times, less than credible; especially when it is taken into account that Mr Adams was an experienced asbestos worker and, at the relevant time, was the site supervisor who had acted in that role for the appellant for approximately six months on different sites, prior to these events.  He had previously spoken to Dr Jones and there was no suggestion by him that he had any difficulty when doing so.  He was therefore fully aware of the role of the inspectors and significance of any answers he might give to Dr Jones and/or Ms McNamara, when carrying out their inspection and that they would have had no reason, given his position on the site and his experience, in the absence of anything more, not to accept what he told them.  Indeed, he would have been fully aware of the powers of the inspector, in such circumstances, including the issuing of a Prohibition Notice, when appropriate. 

2.16	At the outset of his evidence, Mr Adams initially adopted his witness statement as his evidence-in-chief to the tribunal.  This witness statement, dated 16 February 2016, which Mr Adams insisted he had written himself, without assistance, stated:-

“I had just arrived on site at Ballybarnes on 3rd of December 2015 at approximately 09.30 am.  We were inspecting the damage from the storm the night before and started tidying up and making general repairs.  I found the sealing to the window was damaged and I repaired this from the outside.  The airlock needed repaired but I was waiting to get suited up and shaved before any repairs was to be made to the airlock or live area.  I had just turned the generator on when Dr Jones and Kellie arrived.  Dr Jones asked me why the DCU was not running, I replied that the generator was not powerful enough to run the DCU and the neg pressure in it.  He did not ask how I intended to run both.  The area was ready for the lab to inspect and clear.”

2.17	In further oral evidence to the tribunal, Mr Adams explained on the night of the 2/3 December 2015, he had been in the Royal Victoria Hospital, most of the night with his sick wife and had arrived on the site at or about 9.30 am – which was a bit late.  He also said that there had been wind and rain overnight and it had done some damage to the airlock in the enclosure; but he confirmed that there had been no electricity damage to the site so far as he was aware.  Although he referred to arriving late due to his hospital visit, he did not expressly, either to the inspectors or in the course of his evidence, use this as an excuse for any failure by him to have the DCU powered up at the time of the visit of the inspectors (see later).

	However, significantly, he then went onto say, in evidence, that at all material times on this site he had been using the generator to power the NCU but he had been using the mains electricity supply at the farmhouse on the site to provide electric power for the DCU.  He accepted that he knew that Mr Creevy was coming to do the four stage clearance and that when Dr Jones and Ms McNamara came on site the NPU was powered from the generator but the DCU had not been plugged in at the farmhouse on the site.  He said to have done so would have only taken ten to fifteen seconds.  He said he was not aware of any problems with the main electricity supply at the farmhouse at any time, let alone that morning.  He could give no explanation, despite many opportunities to do so, why there was no reference in his witness statement about the use of the mains electricity supply at the farmhouse for providing power for the DCU.

	He accepted, in cross-examination, he had not told Dr Jones at any time, when he questioned him, why the DCU was not working, that the DCU was powered from the electricity supply at the farmhouse and that all that was required to be done, in essence, was to plug the power in at the mains at the farmhouse on the site.  He could give no explanation to the tribunal, despite many opportunities to do so, why he had not told him this or indeed why he did not simply ask the inspectors to give him a moment to plug in the power at the farmhouse, so that the inspectors could be satisfied the DCU was able to be powered.  He also stated the mains power was sufficient to power both the NPU and the DCU; but yet he was unable to give any satisfactory explanation why a generator had been required to be brought on the site, other than some vague reference to the amount of power that was required for all the machinery on the site.  When cross-examined about the evidence of Dr Jones, as set out in his witness statement, that he had told Dr Jones, inter alia, about swapping the units, as the generator could not be used for both at the same time, and that there was no usable mains electric power on the site and that he had therefore had to use a generator, he merely said he could not remember saying it.  Similarly, he said he could not remember telling Ms McNamara there was any issue with the main supply on site, which had kept tripping the power out, and the generator had had to be brought to power the equipment.  He also said he did not remember saying, in answer to Dr Jones, ‘I don’t know’, when he had been asked how he intended to facilitate the work to be carried out by the analyst, with both the DCU and NPU working at the same time.  Further, he could give no explanation why he had not included in his witness statement any reference to plugging in the DCU at the main supply at the farmhouse.

2.18	In considering Mr Adams’ evidence, in contrast to that of Dr Jones and Ms McNamara, the tribunal was faced with a further difficulty, after consideration of the evidence of Mr Raymond Cullen, who, it must be recalled, was not on site at the relevant time.  He also accepted, in evidence, he had never seen how the power to the DCU and/or NPU had been powered on any of his visits to the site, which he said had been often.

	Mr Cullen, in evidence, suggested that the reason for Mr Adams’ failure to get the DCU powered at the farmhouse, was due to his lateness on arrival at the site, even though, as seen previously, this had not been expressly stated by Mr Adams at any time to Dr Jones and/or Ms McNamara.  Mr Cullen disputed Mr Adams’ suggestion of 10 – 15 seconds timescale but said it would have taken longer to set up the cabling to the farmhouse.  Again, and there was no reference by Mr Adams to any issue  about cabling but rather, as set out previously, he had suggested, in evidence, it was just merely a matter of using the switch.  Again, even if it was correct that the cabling required to be set up before the DCU could be powered it clearly could have been done and a suggestion made to Dr Jones to wait while this was done.  This was never suggested to Dr Jones and the tribunal has no reason to believe Dr Jones would not have waited in the circumstances for any such action to have been taken whether it involved rolling out the cabling or merely switching on at the switch in the farmhouse.  Indeed, given Dr Jones accepted what Mr Cullen told him later on 3 December 2015 about the restoration of power (see Paragraph 2.13), this further confirms, in the judgment of the tribunal, such opportunity would have been given by Dr Jones, if Mr Adams had made such a suggestion, before Dr Jones determined whether a Prohibition Notice was required to be issued in the circumstances.  Mr Cullen acknowledged that he personally had never been on site to see how the DCU and NPU were powered up at the same time.  Mr Cullen suggested that a reason for the explanation given by Mr Adams at the time to the inspectors, which he contended was not correct, was due to Mr Adams being scared by the inspector and referred, in evidence, to the ‘big stick’.  However, he accepted there was no evidence to suggest this from Mr Adams.  At best, Mr Adams referred to some nervousness of the inspector, which is very different to any suggestion of being scared.  Some nervousness , before any inspection could be understandable, given the potential consequences arising from a failed inspection; but, in any event, it would not have explained the actions of Mr Adams and what he said to the inspector at the time of the inspection, especially given his experience in relation to asbestos clearance and his time as a site supervisor.  It also has to be noted that Mr Cullen’s son was on site with Mr Adams at the relevant time; but he was not called to give evidence and, in particular, to challenge any evidence given by the inspectors about the situation they found on arrival at the site or indeed what they had been told by Mr Adams.  Given his presence on the site, it might have been thought Mr Cullen’s son might have been ideally placed to do so.  In the circumstances, the tribunal could only conclude any evidence he could have given would have been unhelpful to the appellant (see further Lynch  v  Ministry of Defence [1983] NI 216 judgment of Hutton J, as he then was, relying on the judgment of O’Donnell  v  Reichard [1975] VR 916 at Page 929.  Mr Cullen was unable to give any proper explanation why a generator was being used on the site, if mains power was sufficient to power both units, other than his vague suggestion of ‘laziness’ on the part of his employees.  Mr Cullen suggested in evidence he was contacted by his son, not Mr Adams, that the Prohibition Notice had been issued, following the inspection, which has to be contrasted with the evidence of Mr Adams, referred to earlier.  On balance the tribunal accepts the first notification of the Notice was given by Mr Cullen’s son and Mr Cullen then contacted Mr Adams about the matter.  In either event, who contacted Mr Cullen was not determinative of this appeal.

2.19	Having carefully considered the evidence of the inspectors and, by way of contrast the evidence of Mr Adams and Mr Cullen, the tribunal preferred that of the inspectors and therefore accepted their evidence, as given by them, what they had found on the site at the time of their inspection and also were told by Mr Adams at the time of their inspection, as set out previously.

2.20	If it was simply a case of switching the DCU on at the mains in the farmhouse, whether in a matter of seconds or longer if rolling out of cables was required and there was no issue with the supply of mains electric power to the farmhouse at the time of the inspection, the tribunal failed to understand why Mr Cullen, when told by his son of the Prohibition Notice issued by the inspector, did not simply tell Mr Adams, when he spoke to him, to immediately switch it on at the mains so Mr Cullen could inform Dr Jones the DCU was appropriately powered.  He did not do so but first found it necessary to contact Mr Roddy, the Principal Contractor, to find out whether there was in fact electric power to the farmhouse.  When he was assured there was mains power at the farmhouse, to power the DCU, Mr Cullen, later that day, contacted Dr Jones who, when so informed, confirmed the matters, set out in the schedule to the Prohibition Notice to remedy the contraventions, had been complied with.

2.21	As explained previously (see Paragraph 2.1), Mr Roddy, the Principal Building Contractor, gave written statements to both the appellant and the respondent; but he was not called by either party to give evidence, following clarification by the tribunal of the representatives that he would not be called and their agreement that the weight to which could be given to these statements would be a matter for the tribunal in the circumstances.

	In a statement, dated 8 February 2016 to the appellant, Mr Roddy stated:-

“I confirm that on Thursday 3rd of December the electric on site at 90 Ballybarns (sic) Road was in full working order.”

	In a statement to the respondent, dated 4 April 2016, Mr Roddy stated:-

“ ... I am not sure how I found out there was a problem with the electrics on site.  I think the bricklayer came to me and said you would need to get a spark out to look at the electrics.  I phoned the spark who came to the site and sorted the problem.  He was away before I got to speak with him.  Later on the spark told me that it was a fuse that needed changed.  I cannot recall the date when the spark came on site or the extent of the repairs, just that it was a fuse that was changed ... .”

As seen above, in this statement to the respondent, Mr Roddy acknowledged there was an issue on the site at some time, albeit not specified, in relation to electrics.  In his statement, dated 8 February 2015, to Mr Cullen, by way of contrast, Mr Roddy stated:-

“I confirm that on Thursday 3 December the electric on site at 90 Ballybarns Road was in full working order”;

albeit there was no other evidence given by him to support his certainty about the position on 3 December 2015, in contrast to his subsequent statement to the respondent.  Not having given evidence to the tribunal, it was not possible for the tribunal to reach any conclusions about this issue, based on these two statements.  In the judgement of the tribunal, it was also significant Mr Roddy, in his statement to the appellant, in particular, made no reference to any use by the appellant, when on this site, of this mains electricity supply at the farmhouse, to power the DCU.  

In light of the foregoing, the tribunal was therefore not prepared to attach any weight to either statement by Mr Roddy in the determination this appeal.  

3.	The law

3.1	Relevant legislation

(a)	Relevant statutory provisions governing the issue of Prohibition Notices as set out in Articles 24 – 26 of the Health & Safety at Work (Northern Ireland) Order 1978, as amended (‘the 1978 Order):-

		“General duties of employers to their employees
4(1)	It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. 

(2)	Without prejudice to the generality of an employer's duty under paragraph (1), the matters to which that duty extends include in particular — 

(a)	the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b)	arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c)	the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

(d)	so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

(e)	the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

...

General duties of employers and self-employed to persons other than their employees

5(1)	It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. 

...

Prohibition notices

24(1)	This Article applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply. 

   (2)	If as regards any activities to which this Article applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice — 

(a)	stating that the inspector is of the said opinion;

(b)	specifying the matters which in his opinion give or, as the case may be, will give rise to the said risk;

(c)	where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, stating that he is of that opinion, and

(i)	specifying the provision or provisions as to which he is of that opinion; and

(ii)	giving particulars of the reasons why he is of that opinion; and

(d)	directing that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of sub-paragraph (b) and any associated contravention of provisions so specified in pursuance of sub-paragraph (c) have been remedied.

  (3)	A direction contained in a prohibition notice in pursuance of paragraph (2)(d) shall take effect — 

(a)	at the end of the period specified in the notice; or

(b)	if the notice so declares, immediately.

		Provisions supplementary to Articles 23 and 24

25(1)	In this Article and Article 26 ‘a notice’ means an improvement notice or a prohibition notice. 

 (2)	A notice may include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates; and any such directions — 

(a)	may be framed to any extent by reference to any approved code of practice; and

(b)	may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter.

(3)	Where any of the relevant statutory provisions applies to a building or any matter connected with a building and an inspector proposes to serve an improvement notice relating to a contravention of that provision in connection with that building or matter, the notice shall not direct any measures to be taken to remedy the contravention of that provision which are more onerous than those necessary to secure conformity with the requirements of any building regulations for the time being in force to which that building or matter would be required to conform if the relevant building were being newly erected unless the provision in question imposes specific requirements more onerous than the requirements of any such building regulations to which the building or matter would be required to conform as aforesaid. 

(4)	In paragraph (3) ‘the relevant building’, in the case of a building, means that building, and, in the case of a matter connected with a building, means the building with which the matter is connected. 

(5)	Before an inspector serves in connection with any premises used or about to be used as a place of work a notice requiring or likely to lead to the taking of measures affecting the means of escape in case of fire with which the premises are or ought to be provided, he shall consult the Northern Ireland Fire and Rescue Service Board. 

(6)	Where a notice which is not to take immediate effect has been served — 

(a)	the notice may be withdrawn by an inspector at any time before the end of the period specified therein in pursuance of Article 23 or Article 24(3) as the case may be; and

(b)	the period so specified may be extended or further extended by an inspector at any time when an appeal against the notice is not pending.

		Appeal against improvement or prohibition notice

26(1)	A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an industrial tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit. 

(2)	Where an appeal under this Article is brought against a notice within the period allowed under paragraph (1) then — 

(a)	in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal;

(b)	in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).

(3)	One or more assessors may be appointed for the purposes of any proceedings brought before an industrial tribunal under this Article.”

	(b)	Relevant Rules of Procedure

	Schedule 5 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 

	Industrial Tribunals (Health and Safety – Appeals against Improvement and Prohibition Notices) Rules of Procedure

Application of Schedule 1

1.	Subject to rules 10 and 11, Schedule 1 shall apply to appeals against an improvement notice or a prohibition notice.  The rules in this Schedule modify the rules in Schedule 1 in relation to such appeals.  If there is conflict between the rules contained in this Schedule and those in Schedule 1, the rules in this Schedule shall prevail. 

Notice of appeal

2.	A person wishing to appeal an improvement notice or a prohibition notice (the appellant) shall do so by sending to the Office of the Tribunals a notice of appeal which must include the following – 

(a)	the name and address of the appellant and, if different, an address to which he requires notices and documents relating to the appeal to be sent;

(b)	the date of the improvement notice or prohibition notice appealed against and the address of the premises or the place concerned;

(c)	the name and address of the respondent;
	
(d)	details of the requirements or directions which are being appealed; and

(e)	the grounds for the appeal.

Time limit for bringing appeal

3(1)	Subject to paragraph (2), the notice of appeal must be sent to the Office of the Tribunals within 21 days from the date of the service on the appellant of the notice appealed against. 

...

... .”

(c)	“The Control of Asbestos Regulations (Northern Ireland) 2012

	Regulation 13 (Maintenance of Control Measures etc)

(1)	Every employer who provides any control, measure to meet the requirements of these Regulations must ensure that –

(a)	in the case of plant and equipment, including engineering, controls and personal protective equipment, it is maintained in an efficient state, in efficient working order, in good repair and in a clean condition; and

(b)	where exhaust ventilation equipment or respiratory protective equipment (except disposable respiratory equipment) is provided to meet the requirements of these Regulations, the employer must ensure that through examinations and tests of that equipment are carried out at suitable intervals by a competent person.

	Regulation 16 (Duty to prevent or reduce the spread of asbestos)

Every employer must prevent or, where it is not reasonably practicable, reduce to the lowest level reasonably practicable the spread of asbestos from any place where work under the employer’s control carried out.

	(3)	...
	
Regulation 23 (Washing and changing facilities)

(1)	Every employer must ensure that the following are provided to any employers/employees who is exposed to asbestos –

		(a)	adequate washing and changing facilities;

(b)	where an employer is required to provide protective clothing, adequate facilities for the storage of –

				(i)	that protective clothing, and

(ii)	personal clothing not worn during working hours;

and

(c)	where an employer is required to provide respiratory protective equipment, adequate facilities for the storage of that equipment.

	(2)	The facilities provided under paragraph (1) for the storage of –

			(a)	personal protective clothing;

			(b)	personal clothing not worn during working hours; and

(c)	respiratory protective equipment, must be separate from each other.”

		must be separate from each other.
	
(d)	Approved Code of Practice (ACOP) and Guidance, pursuant to the said Regulations

Enclosures

316

Where an enclosure is being used to comply with Regulation 16, employers should make sure that:-

•	it is properly ventilated;

•	a thorough visual inspection and check on the integrity of the enclosure, air locks and ducting from air extraction equipment is carried out at least at the beginning of each shift;

•	any defects found during inspections and testing are repaired immediately;

•	air extraction equipment is operated while work is being carried out, during breaks and for at least one hour after each shift;

...

	Hygiene facilities

318	Where specific hygiene facilities are provided, employers should make daily checks throughout the duration of the work to make sure showers, heating, lighting, extractor units, battery charging facilities and residual current devices are all working.

418	(Stage Three Clearance Air Monitoring)

Following successful completion of the thorough visual inspection, and before the enclosure is dismantled or the work area handed back to the owner/occupier, carry out our monitoring to check that the concentration of airborne fibers remaining in areas affected by the work is as low as is reasonably practicable.  For enclosures, this is carried out with the enclosure intact and dry, outwith the negative pressure unit switched off and the pre-filter capped and sealed.

	Hygiene Facilities for Licensable Work (Regulation 23)

521	For licensable work, suitable and sufficient hygiene facilities must be provided to enable employees working with asbestos to be able to clean and decontaminate themselves.  This is to prevent the spread of asbestos and reduce the risk of exposure of others.  Suitable hygiene facilities whether purpose built on site or a transportable dedicated decontamination unit (DCU), must be provided on the site and be fully operation before any work (including ancillary work) starts.

522	The hygiene facilities will need to have separate changing rooms for dirty, contaminated work clothing and for cleaner personal clothing – known as ‘dirty’ and ‘clean’ areas respectively.  The shower should be located between the two changing rooms so that it is necessary to pass through them when going from one changing area to the other.  All doors between each room and those leading to the outside from the ‘dirty end’ should be self-closing and provide an airtight seal.  The ‘clean’ and ‘dirty’ ends should be fitted with adequate seating and be large enough to change in.

...

524	Maintenance records for DCUs (or copies of them) should be kept on site.  The hygiene facility should remain operational and not leave the site until the job is complete and the certificate of re-occupation has been issued.”

3.4	As set out in the Health & Safety in Work (Northern Ireland) Order 1976, Article 243, it is provided that, in the case of a Prohibition Notice, the tribunal can direct that the Notice be suspended until determination of the appeal, on application by the appellant.  The Rules of Procedure, as set out previously, set out the procedure for making a preliminary application for a direction suspending the operation of a Prohibition Notice.  In this case, it is not disputed, in light of the facts as found previously, that such an application was not appropriate or necessary in the circumstances and therefore did not require to be further considered by the tribunal.

4.	Relevant case law

4.1	In Readmans and Another  v  Leeds City Council [1992] COD 419 useful guidance was set out on the issue of the burden of proof and standard of proof.

	Roch J said that, in the majority of cases, the burden of proof would not be determinative of the issues which the tribunal had to decide.  Nevertheless, he stated that a correct approach to decision-making was important.  The right starting point was held to be that the issue of a Prohibition Notice was a substantial interference in the freedom of an individual to carry on his business as he thought fit.  There could also be serious financial implications.  He concluded that it would be inelegant, if not absurd, that the burden of proof and appeals against a Prohibition Notice should be any different from that in criminal proceedings.  He therefore held that it was for the inspector to show, on the balance of probabilities, that there was a risk of health & safety.  If that could be shown, it was for the              duty-holder to prove that he had done all that was reasonably practicable.  

	Roch J observed that an appeal to a tribunal was not an appeal in the true sense.  Since the inspector had issued the Notice, he held it was for him to satisfy the tribunal that the opinion which give rise to it was justifiable.  As a result of this guidance, it has long been held that cases at the tribunal, involving an appeal against a Prohibition Notice, were usually commenced by the respondent calling its evidence first; albeit, where it was accepted there was a prima facie breach of the legislation, the only issue might be what was done was reasonably practicable and, in such circumstances, it might then be appropriate for the appellant to call that evidence first.  In these proceedings, it was not disputed that, in accordance with Readmans, the respondent’s evidence should be called first.

4.2	In Northern Ireland, it has long been recognised that relevant decisions of the Court of Appeal in England and Wales, Court of Session in Scotland, including, where appropriate, in this context, decisions of the High Court (Administrative Court) in England and Wales, are of highly persuasive authority albeit not strictly binding upon this tribunal; but will be generally followed where it is appropriate to do so and, in particular, where the relevant legislation in Northern Ireland and Great Britain, upon which any such decisions are based are in the same and/or similar terms (see Beaufort Developments (NI) Ltd  v  Gilbert Ash [1997] NI 142).  

	Given the similarity of the legislative provisions (Health & Safety at Work Act 1974 (‘the 1974 Act’) and Health & Safety at Work (Northern Ireland) 1978 (‘the 1978 Order’) the tribunal has referred, as set out later in this decision, to relevant decisions of the above Courts, where appropriate, in the absence of any relevant decisions of the Court of Appeal and/or High Court in Northern Ireland.

4.3	For some time, it has been recognised that the decision by Mr Justice Charles in Chilcott  v  Thermal Transfer Ltd [2009] EWHC 2086 (Admin) has been the relevant starting point for any discussion of the proper interpretation of the provisions of the relevant legislation in appeal against a Prohibition Notice:-

“5	In Railtrack Plc  v  Smallwood [2001] ICR 714, at paragraph 44, Sullivan J, as he then was, said this after citing section 24: 

‘In the light of those factors, and of the authorities cited in De Smith Woolf & Jowell's Judicial Review of Administrative Law (1999), pp 251 - 252, paragraph 6-010, I expressed the provisional view during the course of argument that a tribunal hearing an appeal under section 24 of the 1974 Act was not limited to reviewing the genuineness and/or the reasonableness of the Inspector's opinions.  It was required to form its own view, paying due regard to the Inspector's expertise, see in particular Sagnata Investments Ltd  v  Norwich Corporation [1971] 2 QB 614’.

6.	In paragraph 46 of that judgment, Sullivan J points out that the representative of the Inspector in that case reserved the position of the Inspectorate as to the correctness of that approach.

7.	I was told that, before the Employment Tribunal, the representative of the Inspector in this case did not accept the correctness of that view of Sullivan J, and therefore was effectively arguing for a judicial review approach to the decision of the Inspector.  To my mind, this may well have caused some confusion in the minds of the Employment Tribunal when they came to deliver their decision.

8.	The appellant, before me, embraced Sullivan J's approach.

9.	On the appeal before me, both the representatives of the Inspector and the appellant invite me to adopt Sullivan J's preliminary approach as to the test to be applied on an appeal.  I do so.  To my mind, that is the correct approach.  I have reached that conclusion without the benefit of contrary argument, or indeed being referred to the text book authority and authorities referred to by Sullivan J.  However, the statutory structure of this litigation, leads me to conclude, like him, that it is open to the Employment Tribunal on an appeal to reach its own decision, and its focus is not upon what would essentially be public law challenges to the decision of the Inspector.  The alternatives carry significant differences in the approach to be adopted.

10.	Returning to the section, that is section 24 and the powers that it confers on the Employment Tribunal, to my mind it emphasises that the focus of attention on the appeal is to the situation on the ground when the notice is actually served.  I take that from the point that it can either cancel or affirm the notice, and it is only if it decides to affirm that it can then affirm it with modifications.  That seems to me to focus the analysis to the time when the notice was actually served.

11.	Turning to section 22 and the focus of the notice itself, that too, necessarily to my mind, focuses the decision making process to the moment at which the notice is served.  In broad terms, the section is concerned with the identification, prevention, and thus management of risk.  The risk being a risk of serious personal injury by reference to an activity then being carried on, or likely to be carried on by the relevant person or under the control of that person.  So, the focus is to as to risk flowing from an activity then being carried on or likely to be carried on as at time X, namely, the time when the notice is served.

12.	In that context, it seems to me, by reference and analogy to other areas where risk of significant harm falls to be assessed, and I take by analogy the jurisdictional trigger for intervention by making a public law order in Children Act cases where the relevant risk has to be assessed when the process is started by the relevant local authority, that what has to be established is the relevant risk as at that time.  In determining whether or not that risk exists as at that time, the court does not close its eyes to matters that occurred after that time, but that is not the same approach as I would understand generally to be the expression 'judged with the benefit of hindsight'.  What the court's function is, is to identify on the evidence before it, which is not restricted to matters that were in existence before a particular date, what the situation was as at that particular date.  Did the relevant risk exist?  What would happen if it came to fruition?  Matters of that type, and in that context to determine, paying due regard to the views of the Inspector, whether a notice should have been served to promote the underlying purposes of the Act, and in particular section 22.  The purpose of that, it seems to me, is moderately clear, namely, that a notice should be served if the risk identified of serious personal injury warrants it.

...

19.	The Employment Tribunal, on the basis of the evidence it has on the approach I have indicated, can and should itself, having due regard to the view of the Inspector and the Inspector's expertise, and indeed the expertise of the assessors of the Tribunal, assess the risk as at the relevant date.  The assessment of risk is a multi-faceted exercise; some factors will be more important than others, and it seems to me inappropriate for me to seek to set guidelines in that context.

20.	Here, at the heart of the Tribunal's reasoning are paragraphs 19 to 21 of the decision: 

‘19.	We can understand Mr Chilcott's concern faced with an actual accident, an apparent danger and a main contractor whom he did not know.  It may well have been the right decision then, but when, the next day, he expressed himself satisfied with the precautions put in place by the appellants it became apparent that his decision had been premature and excessive.

20.	The tools available to an Inspector are limited.  A 24 hour temporary order would have been legitimate, but that cannot be done.  He had the choice of either making a permanent order, with all the ramifications for the appellants, or doing nothing with the risk that the appellants would allow the sub-contractors back on the platform.

21.	It is our view, with hindsight, that there was no real risk that the AA Group would go back on the platform that night.  Mr Campbell, who was the working supervisor, was in hospital.  His assistant had taken him to hospital.  Mr Chilcott could have obtained an assurance, if necessary in writing, that no-one would work on that handrail at all for 24 hours and that, thereafter, it would be done in accordance with the method statement’.

21.	It was argued, in writing and orally, on behalf of the appellant that those paragraphs demonstrated sufficiently that the Employment Tribunal had applied the correct test.  To my mind those paragraphs can not be so read.  Certainly to my mind, and reading these reasons generously as one must, and in the light of the submissions made to them and the evidence they heard, and thus with the knowledge of those who had been before the Tribunal, it does not seem to me that it can be said that they have properly applied the test as I have described it and as I would understand Sullivan J to have described it.  Rather, it seems to me, that they were not focussing, as in my judgment they should, on the point at which the notice was served and determining whether they, if they had been in the position of the Inspector, would have served that notice.  Rather, they were looking at the position with the benefit of hindsight, as that expression is commonly used, namely, he may well have been right, he may well have been wrong, but with the benefit of hindsight we can reach a different decision.  That was not the process which, in my judgment, they were charged with; their task was to decide what they would have done at that point in time.”

[Sections 22 and 24 of the 1974 Act are in similar terms to Articles 24 and 26 of the 1978 Order.]

4.4	It has also been held that neither the loss of profit nor the fact that the jobs of employees will be endangered, amount to sufficient grounds for the suspension of a Prohibition Notice.  An argument to the effect that the company could not afford to take the precautions required by law is irrelevant to the question of whether notice should or should not be affirmed (see further Health & Safety Enforcement Law in Practice, 3rd Edition, Richard Matthews QC and James Ageros, Paragraph 4.101 and Grovehurst Energy Ltd  v  Strawson [COIT 5035/90], Nicko Manufacturing Ltd  v  B Hendry [1975] IRLR 225 and TC Harrison (Newcastle-under-Lyme) Ltd  v  Ramsay [1976] IRLR 135).  

4.5	As set out previously, under Article 24 of the 1978 Order, if the tribunal affirms the inspector’s opinion, it has wide powers thereafter.  It can affirm the Notice but may do so either in its original form, or with such modifications as things fit in the circumstances of the case.  Modifications include, additions, omissions and amendments, and include the power to extend the time allowed for correcting the contravention in question (see Campion  v  Hughes (HM Inspector) [1975] IRLR 291).  In light of the facts as found by the tribunal, as referred to previously, the issue of modification did not require to be considered further by the tribunal as it was accepted that the Prohibition Notice was complied with by the appellant, following the discussion between the inspector and Mr Cullen (Senior), on the day the Prohibition Notice was issued and thereafter complied with.  

4.6	Recently, the decision in Chilcott has been considered in a number of recent decisions by the High Court (Administrative Court) in England and Wales, the Court of Appeal in England and Wales but also the Court of Session in Scotland.

	The tribunal therefore considered it appropriate and necessary to consider these decisions to see whether Chilcott remained good law.  Certainly, in decisions in this tribunal in the case of Bridgeline Environmental Services Ltd  v  Health & Safety Executive for Northern Ireland [Case Reference Nos:  6540/09 and 6541/09] and McGlinchey Brothers NI Ltd  v  Health & Safety Executive for Northern Ireland [Case Reference No:  1955/12], the guidance set out in Chilcott was followed; albeit the factual situation in those cases was very difficult to the facts, the subject-matter of the present proceedings and such decisions are, in any event, not binding on this tribunal.  

4.7.1	In MWH UK Ltd  v  Wise (HM Inspector of Health & Safety) [2014] EWHC 427 (Admin), Mr Justice Popplewell approved, in Paragraph 22 of his judgment, the guidance set out in Chilcott in Paragraphs 5 – 12 and 19 – 21 of the said judgment.

4.7.2	In Sarah Jane Hague (one of Her Majesty’s Inspector of Health & Safety)  v  Rotary Yorkshire Ltd [2015] EWCA Civ 696, Lord Justice Laws reviewed the authorities and summarised the law in the following factual situation.  Briefly, this related to whether exposed conductors connected to transformers were dead.  If they were not dead, there was the danger of serious injury if there was contact with an exposed conductor.  The Health & Safety Inspector was not sure if they were dead and Rotary Yorkshire were unable to satisfy him they were dead at the relevant time.  A Prohibition Notice which was issued until the electrical systems were made safe.  However, the next day it was established the conductors were dead and, in fact, had been dead on the day of the inspection, before the Notice was issued.  The issue for the Court of Appeal was whether the tribunal could take this fact into account, which it was not disputed was not known to the Inspector at the time of the issue of the Prohibition Notice.

Lord Justice Laws, when giving the judgment of the Court, stated as follows:-

“27.	I have no doubt that Section 24(2) of the HSWA confers the right of appeal on the facts and, unlike Section 11 of the 1992 Act, not just the law.  See the observations of Sullivan J, as he then was in Railtrack PLc  v  Smallwood [2001] ICR 714 at Paragraphs 44 – 49.  The view he there expressed was provisional but seems to me to be correct.  However, this does not encompass the whole of the question.  What facts are the Employment Tribunal to consider?  Those which goes to the propriety of the Prohibition Notice at the time it was issued or also later events amounting to hindsight and of which the inspector at the time may have no knowledge or means of knowledge.”

4.7.3	Laws LJ then proceeded to refer, with approval, to the judgment of Charles J in Chilcott  v  Thermal Transfer Ltd [2009] EWHC 2086 (Admin) and, in particular, Paragraphs 10, 11 and 21 of his judgment (but not Paragraph 12 – see later) and Paragraph 22 of the judgment of Popplewell J in MWH UK (see above).

	Laws LJ, then concluded:-

(31)	In my judgment, Charles J’s approach in the Chilcott case was correct : the question for the inspector is whether there is a risk of serious personal injury.  In raising such a question it surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision.  He or she is concerned with the prevention of injury at that time, that is the focus of the provision, which it should be remembered, contemplates action in a possible emergency.  The Employment Tribunal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector’s action’.”									[Tribunal’s emphasis]

Laws LJ, in light of the foregoing, concluded the fact the conductors were not dead at the time of the inspection, as ascertained the next day, could not be taken into account by the tribunal.

4.7.4	In the case of Christopher Wilcox (one of Her Majesty’s Inspectors of Health & Safety)  v  Survey Roofing Group Ltd [2016] EWHC 868 (Admin), Ms Geraldine Clarke, Deputy High Court Judge, followed guidance of the Court of Appeal in Hague  V  Rotary Yorkshire Ltd.

4.8	Thus, subject to what is set out below, until recently the proper approach of a tribunal, in this jurisdiction, when determining an appeal against a Prohibition Notice, might have been expected to be, as set out in the judgment of Laws LJ in Hague  V  Rotary Yorkshire Ltd, more specifically referred to above; especially given the persuasive nature, in this jurisdiction, of such a decision of the Court of Appeal in England and Wales.  However, it was also necessary for the tribunal to consider the recent decision of the Court of Session in Scotland in the case of HM Inspector of Health & Safety  v  Chevron North Sea Ltd [2016] CSIH 29, which, as set out below, distinguished, in part, Rotary Yorkshire Ltd.  This tribunal was therefore faced with two decisions, at ‘Court of Appeal’ level, both of which would normally be of persuasive authority in this jurisdiction; albeit not binding, and, in circumstances where any differences between the two decisions had not been, to date, the subject of any Supreme Court decision.

4.9.1	Given the factual situation in the present proceedings, as found by the tribunal, but also that the decision of the Court of Session distinguished, in part, the decision of Laws LJ in Rotary Yorkshire Ltd it is necessary to set out, in some detail, the factual situation that arose in Chevron North Sea Ltd.  

	The respondents were the operators of an offshore crude oil processing station in the North Sea.  Both employees and non-employees of the respondent visited and worked on the installation and for the purposes of the 1974 Act, the respondent were responsible for ensuring, so far as reasonably practicable, the health & safety of all persons on the installation.  The main mode of access to, and egress from, the installation was by helicopter.  The only access to the helipad was by three stairways which led to staging running around the perimeter of the helipad and one metre below it.  The helipad, and thus the stairways and staging were the primary evacuation route for the installation.  At a planned inspection by the Health & Safety Inspectorate significant areas of what was thought to be corrosion in the stairway treads in all three stairways, as well as on the grates of the staging were identified.  A loading test was carried out on a tread of the portside stairway, albeit with a fire axe rather than a hammer, in an attempt to shed corroded steel from the grates to determine the thickness of the steel underneath.  The axe shred through the steel.  As a result, the inspectors concluded that the steel was corroded to such a degree that it would not be able to support the weight of an evacuation of multiple men carrying work equipment and potentially running.  One of the team carrying out the inspection was a corrosion expert.  As a consequence of the said inspection, the Health & Safety Inspectorate considered that the stairways and staging were unsafe and a Prohibition Notice was served on the respondent.  The Notice stated that, in the opinion of the Inspectorate, the use of the stairways and staging ‘which are likely to be carried on’ will involve the risk of serious personal injury, by reason of persons falling through them.  This would involve a contravention of certain offshore installation regulations; ‘because the steel grating of the staging and stairways treads are in a weakened condition because of corrosion which compromises safe evacuation’.

	At the time of the Notice, the Inspectorate were aware that remedial works, in the form of securing scaffolding boards to the grates had commenced on the portside stairway, although not on the other two stairways.  The installation manager had offered an undertaking that the remedial work would be undertaken straightaway, and that the staging and stairways would not be used until the works had been completed.  The inspection was carried out on 23 April 2013 and the Inspectorate were to remain on the installation until 25 April 2013.  By the time they departed on that date, all the remedial work had been carried out other than the work to the forward stairway.

	Following the events of 23 – 25 April 2013, the respondent arranged for the stairways and staging to be removed from the installation, placed in a secure container, and transported to the lab of Exova for testing.  The testing did not take place until November 2013; but it revealed that, except for the panel which had been sheared by the fire axe, all met the British Standard requirement.  The damage to the panel by the fire axe, which sheared the bars rather than applied a load, meant that the strength of that panel, prior to being damaged, could not be determined.

4.9.2	Lord Carloway, The Lord President, in the course of his judgment, noted, with approval, the Employment Tribunal proceeded on the basis that the function of the tribunal:-

“ ... was not limited to reviewing the genuineness and/or the reasonableness of the inspector’s opinions.  It was required to form its own view, paying due regard to the inspector’s expertise.”		

4.9.3	(Railtrack  v  Smallwood [2001] ICR 714, Sullivan J at Paragraph 44).  The Lord President noted, in this context, the Employment Tribunal also had decided, firstly, that it ought to focus on a period of time on 23 April 2013 and consider what they would have done, had they been in possession of the same information as the appellant had at that time.  In particular, he noted the findings of the tribunal, as referred to in Paragraphs 10 – 13 of his judgment, that at the time of the Notice : barriers had been put in place to prevent access to the stairways and staging; the next flight in was not due until the following day; work had commenced (or was about to commence) to make safe the area; the installation manager was helpful and had expressed willingness the remedy problem straightaway; and, most significantly, the inspectorate was to remain on the installation until 25 April 2013.  The tribunal considered that this was a key factor which distinguished this case from others.  The Inspector would, the tribunal reasoned, have remained ‘in effective control of the situation’ until 25 April 2013.  On that basis, the use of the stairways and staging was ‘not likely to be carried on’.  There was no risk of serious personal injury.  Service of a Prohibition Notice at that point had not been the only means of dealing with the situation.  The Inspector knew that the area had been blocked off and that work had started to make safe the area.  This would have been completed at two of the stairways in a matter of hours.  In those circumstances, the tribunal considered that the service of the Notice on 23 April 2013 had been both unnecessary and unreasonable.  There was nothing to stop the Inspector from waiting until it was leaving the installation before deciding whether to serve a Notice at the time.  At the time that the Inspector had left, work had not yet commenced on the forward access stairway.  On that basis, the tribunal considered that the Inspector would have been justified in serving a Notice in respect of the forward access only, as he would ‘no longer be able to rely on the good intentions of the installation manager’.  The tribunal therefore decided, subject to what is set out below, to affirm the Notice but to modify it to cover only the forward access stairway.

Significantly, for the purposes of the present proceedings, the tribunal, having so decided, then considered whether the Exova testing results ought to be taken into account and whether that would alter the ‘initial’ decision which they had taken, as set out above.  It noted that there was no guidance in the legislation on whether evidence which did not exist at the time of the Notice, ought to be taken into account.  The tribunal considered that their purpose was to ‘examine and determine’ the risk which actually existed at the time of the Notice.  It was to re-make the decision, albeit having regard to the expertise of the Inspectorate.  However, the tribunal considered that they should not close their eyes to later matters in determining the risk which existed at the time of the Notice, nor should it restrict the evidence heard to that which existed at that time.  Evidence which had come into existence after the Notice, in the judgment of the tribunal, could be taken into account, as long it shed light on what the situation had been at the time of the Notice (Chilcott  v  Thermal Transfer Ltd [2009] EWHC 2086 (Admin), Charles J at Paragraph 12).

The tribunal, having considered that there was no basis to exclude the evidence of testing, noted that the condition of the metal in November 2013, when the testing was actually taken out, was circumstantial evidence, from which an inference could be drawn about its state at the time of the Notice.  The tribunal specifically noted that the expert ‘agreed with the conclusion but the testing established that there was no risk of serious personal injury’.  The tribunal did not consider that it could ‘gainsay’ the evidence of the expert, and concluded that at the time of the Notice the condition of the stairways and staging, although visibly corroded, was not such as to pose a risk of serious personal injury.  The tribunal explicitly rejected the appellant’s argument that, to take into account evidence which did not exist at the time of the Notice, would be to undermine the purpose of the legislation, which is to prevent workers being exposed to health & safety risks.  The tribunal considered that nothing in their judgment altered the power of an inspector to issue a Notice when he considered that there was a risk of serious personal injury.  The appeal process was designed to correct any error on the part of an inspector, either by modification or cancellation of the Notice.  It would be unjust for a Notice to remain, when it transpired that its factual basis was erroneous.  This was true whether the information, which revealed the true state of affairs, could have been known to the Inspectorate at the time or not.  

4.9.4	In light of the foregoing, Lord Carloway, The Lord President, stated, as follows, in his judgment:-

“21.	According to Section 24 of the Health & Safety Work etc Act 1974, a person who has been served with a Prohibition Notice may ‘appeal’.  It does not say what it is that can be appealed, but the heading states that the appeal is ‘against’ the Notice.  The most obvious construction of that is that the person affected can appeal upon the basis of what is stated in the Notice.  That will include a challenge to a statement of fact that, in this case, the metal was in a weaken condition because of corrosion.  In normal course, the appellant ought to be entitled to leave such evidence as he wishes to demonstrate that, at the material time (ie the date of the Notice) the metal was not in the averred condition.  It is thus not immediately apparent by an appeal ‘against’ a Notice should be confined to an enquiry into the correctness or reasonableness of the inspector’s decision to issue the Notice having regard to the evidence which was, or may reasonably have been available to him when he did so.  But for the respect which the Court has for the views of the Court of Appeal, a decision would proceed simply on that basis.  It is of course the reasoning in Rotary Yorkshire  v  Hague [2015] EWCA Civ 696 which has prompted a more studied examination of the issue.  

22.	In Railtrack  v  Smallwood [2001] ICR 714, Sullivan J reached a ‘provisional view’ (at Paragraph 44) that a hearing on an appeal under Section 24 of the 1974 Act:

‘Was not limited to reviewing the genuineness and/or reasonableness of the inspector’s opinions.  It was required to form its own view, paying due regard to the inspector’s expertise’.

That appears to be a sound view.  The appeal under Section 24 is not unlike appeals to the Court under Section 11 of the Tribunals and Enquiries Act 1992, confined to points of law.  An appeal on the facts is equally open.

23.	Sullivan J’s provisional view had been reached in the absence of contrary argument.  The respondent had said that he was reserving his position.  The matter was examined in Chilcott  v  Thermal Transfer Ltd [2009] EWHC 2086 (Admin).  Both sides accepted Sullivan J’s approach and Charles J applied it.  He described it as correct, but noted the absence to any contrary argument or reference to authority.  Nevertheless (at Paragraph 9) that:

‘The statutory structure of this litigation, leads me to conclude, like (Sullivan J) that it is open to the Employment Tribunal on an appeal to reach its own decision, and its focus is not upon what was essentially be public law challenges to the decision of the inspector.  10.... the focus of attention on the appeal is the situation on the ground when the Notice is actually served ...’.

			He continued (Paragraph 12):

‘What has to be established is the relevant risk at that time.  In determining whether or not that risk exists at that time, the Court does not close its eyes to matters that occurred after that time, but that is not the same approach as ... [understood] generally to be the expression ‘judged with the benefit of hindsight’.  What the Court’s function is, is to identify on the evidence before it, which is not restricted to matters that were in existence before a particular date, what the situation was at that particular date.  Did the relevant risk exist?  ... ;

			Once more this seems eminently sensible.

24.	It has to be borne in mind that a Prohibition Notice may have a profound effect on an operator’s business.  It may close it, where any works required to avoid the perceived danger are prohibitive.  The existence of a Notice in the Public Records may have an adverse effect on a contractor’s reputation and his ability to tender.  It would be strange indeed if the operator could not mount a successful appeal based upon the simple contention that, whatever the inspector thought at the time based on the information available to him, it was now known, based on more complete or additional information, perhaps even accepted on all sides, that the risk founded upon did not in fact exist.  If that is so, the respondent’s appeal, insofar as it based on the Exova testing, is a legitimate one.  This analysis has no bearing upon an inspector’s ability to act, in the interest of health & safety, where he forms the opinion that a risk exists.  The emergence of new material demonstrating that he was in fact quite wrong does not, of itself, invalidate the Notice or its effect at the time.

25.	Thus Hague  V  Rotary Yorkshire Ltd [2015] EWCA Civ 696 is troubling.  That case had involved a Prohibition Notice in respect of the use of electrical conductors.  The appellant was not sure if they were dead, although he thought they were, in the absence of certain documentation.  The following day it was established that the conductors were indeed dead.  The tribunal took the view (Paragraph 14) that the risk was to decide the appeal on the state and knowledge available (of which could have been acquired by reasonable investigation) at the time of the Notice.  They held that a risk had been present because of the possibility of the conductors being live, even though they were not.

26.	Collins J reversed the tribunal’s decision (see Paragraph 18), but on the basis that, put shortly, it could have been ascertained at the time that the conductors were dead.  The Court of Appeal determined (at Paragraph 21) that no error of law, as required by Section 11 of the 1992 Act, had been identified by Collins J.  They therefore restored the tribunal’s judgment.  However, Laws LJ, (with whom Tomlinson and Kitchen LJJ agreed) went on to consider the scope of an appeal under Section 24 of the 1974 Act.  He accepted (at Paragraph 27) that the section conferred a right of appeal on the facts as well as the law.  He expressly endorsed Sullivan J’s provisional view in Railtrack  v  Smallwood, but did not consider that this meant that the tribunal were entitled to take into account (later events) of which the inspector could have had no knowledge at the time of the Notice.

27.	Laws LJ quoted certain parts of Charles J’s judgment in Chilcott  v  Thermal Transfer (see also MWH UK Ltd  v  Wise [2014] ACD 96, Popplewell J at Paragraph 22).  He stated (Paragraph 31) that Charles J’s approach in Chilcott ‘was correct’.  This meant that:

‘ ... the question for the inspector is whether there is a risk of serious personal injury.  In raising such a question must surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision.  He or she is concerned with the prevention of injury at the time, that is the focus of the provision, of which it should be remember, contemplates action in a possible emergency.  The Employment Tribunal on appeal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector’s action’.

It is undoubtedly correct that an inspector can only form a view based on his perception of the facts and his assessment of risk.  However that does not affect the scope of an appeal on the facts.  The difficulty with the reasoning of Laws LJ, as expressed, is that whilst endorsing Charles J’s view as correct, it reaches the opposite conclusion, having omitted to quote the essential part of the dictum in Chilcott (supra at Paragraph 12) that although the tribunal requires to ascertain whether a risk existed at the time of the Notice, it is not restricted to looking at information known at the time.  It can take into account evidence, bearing upon the facts in existence at the time of the Notice, which only emerge at a later date.  			[Tribunal’s emphasis]

28.	The fundamental problem with the approach of Laws LJ is that it prohibits an appeal on the facts in a situation where it can be demonstrated that the facts or information upon which the inspector proceeded were wrong.  That is the essence or purpose of many appeals on the facts.  In short, there is no sound basis for restricting appeals under Section 24 to what would in essence be a form of judicial review of the inspector’s opinion.  An appeal on the facts is a much wider concept and, endorsing the views of Sullivan and Charles JJ, it enables an appellant to prove, using whatever competent information is available at the time of the tribunal’s hearing on the appeal, that the factual content of the Notice was wrong and that, accordingly, how reasonable the inspector’s opinion was at the time, had the true facts been known, he would not have reached it.

29.	It follows that, in relation to the second issue raised in appeal, the tribunal were correct in having regard to the Exova report.  It was then for the tribunal to reach their own view upon all the evidence.  It is not possible to discern any error of law in the tribunal’s assessment (at Paragraph 159) that at the time of the Notice, ‘the condition of the gratings and stairs, albeit plainly affected by considerable corrosion, did not in fact involve a risk of serious personal injury’.  That was the evidence of the expert called by the respondents and the tribunal were entitled to accept it.  That involved no criticism of the appellant.  As the tribunal noted (at Paragraph 160):

‘Any item of plan or equipment they seem to be so weakened by age or other conditions it appears no longer fit for its purpose, but closer inquiry and testing might show otherwise’.

30.	The view taken on the second issue is sufficient to dispose of the appeal.  In relation to the first issue, which presupposes the exclusion of the Exova results, once again the tribunal were entitled to reach their own view based on the evidence which they had heard.  They took into account a number of features including : the temporary measures which had been put in place to prevent the use of stairways and staging; the remedial steps which were underway, the undertakings given by the installation manager; the fact that the stairways and staging would not be used until the remedial work were completed; and the presence of the appellant until 25th of April.  All of these circumstances justified the findings that there was no risk of serious personal injury and that service of the Notice was both unnecessary and unreasonable.

31.	The criticisms of the tribunal’s approach are essentially directed towards the weight attached by the tribunal to particular facts and circumstances.  As such there is no true error of law identified, in the absence of an unreasonable conclusion.  In a particular case, a tribunal or an inspector may, depending on the evidence, decide that any temporary measures taken, or undertakings given, or progress of remedial works noted, do not persuade them or him that the risk is effectively eliminated.  It would also depend on the particular facts and circumstances.  However, a tribunal or inspector is not bound to discount these factors when assessing whether the particular operation (in this case evacuation) will involve the relevant risk.  In some cases, a tribunal or inspector may decide that a risk remains or will revive.  That may be the situation where a serious accident has occurred and the relevant activities will be resumed at some point (eg Railtrack  v  Smallwood).  There is no absolute proposition that temporary means, undertaking and remedial steps can, or should, be ignored when carrying out the risk equation.  Equally the presence of an inspector on site is a factor, albeit not a decisive one, in assessing the risk.  The tribunal or inspector may regard that as of little or significant weight according to the particular circumstances.

32.	The tribunal may have erred in going onto consider what might have been appropriate two days after the Notice.  That does not affect their decision on the issue of risk at the time the Notice was served.  They did not err by applying hindsight.  They considered what they would have done (both with and without the Exova testing) on the facts known at the time.  The appeal must accordingly be refused.”

4.9.5	Lord Menzies agreed with the views expressed by the Lord President.  However, he also stated:-

“35.	... if the tribunal is charged with the responsibility of considering whether there was in fact a risk of serious personal injury at the time of issuing the Prohibition Notice, then I consider that it must be entitled to have regard to evidence which postdates the issuing of the Notice, but which may cast light on that factual issue.  As Charles J observed in Chilcott (at Paragraph 12), that is not the same as judging with the benefit of hindsight.  The focus of the tribunal’s attention is on the factual question – did the relevant risk actually exist at the time the Notice was issued?  That is quite different focus from the question – did the inspector act reasonably in all the circumstances when he issued the Notice, or did he act perversely?  So, the tribunal should be focusing, on the basis of all the evidence before it (including evidence which post-dated the issuing of a Notice, but which may cast light on the existence of the risk at the time that the Notice was issued).  The risk actually existed at the time of the Notice – not on the inspector’s reasons and state of knowledge at that time.

36.	With the greatest respect to Laws LJ, it appears to me that he may have failed to bear in mind at Paragraph 27 of his opinion in Hague  v  Rotary Yorkshire Ltd that the focus of the tribunal was in the actual risk at the relevant time, rather than on the reasonableness of the inspector’s assessment and reasoning, and the extent of his knowledge, or means of knowledge when issuing the Notice.  He asked, and answered, the questions as follows:

‘What facts are the Employment Tribunal to consider?  Those which go to the propriety of the Prohibition Notice at the time it was issued or also later events amounting to hindsight and of which the inspector at the time may have no knowledge or means of knowledge’.

The answer which he gives there is an answer focused on the reasonableness of the inspector’s decision, the extent of his knowledge or means of knowledge and the propriety the Notice would be issued.  It seems to me to be an answer appropriate in the context of judicial review, but not in the context of a Section 24 appeal where the tribunal is considering the risk actually existed at the time that the Notice was issued.

37.	It may be entirely reasonable and proper for an inspector in a particular set of circumstances, on the basis of the information and knowledge available to him at the time, to reach the opinion that activities involve, or will involve, risk of serious personal injury.  In those circumstances, he may serve a Prohibition Notice in terms of Section 22 of the 1974 Act.  However the propriety of the Notice, the reasonableness of the inspector’s assessment of risk, or the extent of his knowledge, are not necessary considerations for the tribunal in an appeal under Section 24 of the Act.  They may arise – indeed the tribunal in the present case heard evidence and submissions about some of these matters and gave their opinion on them in what has been referred to as ‘the first issue’.  The crux of the matter before the tribunal in this appeal is not this however; it was an appeal on the facts such as this, whether the risk did in fact exist at the time of the Notice.

...

39.	The construction of Section 24, which I favour, does not, it seems to me, appear to call in question the propriety of the Notice which it may well have been the inspector’s duty to issue at the time, because the focus on the tribunal is not on the propriety of the Notice, but on whether (on the basis of all the evidence before it), the activities involved or would involve a risk of serious personal injury at the time.  That question may well be answered in the negative, but nonetheless cast no doubt on the propriety of the inspector’s decision.  An inspector may quite properly and reasonably take a decision to issue a Notice under Section 22 and yet a tribunal may (equally, properly and reasonably) cancel the Notice on a Section 24.  I do not consider this weakens the enforcement provisions of the Act, nor does it undermine the authority or responsibility of an inspector who is considering issuing a Prohibition Notice under Section 22.  On the contrary, it merely recognises that an inspector’s assessment and decision under Section 22 often requires to be taken as a matter of urgency, when all the relevant knowledge and information may not be to hand.  The alternative construction would have the result that the person on whom a Notice is served may have no redress and would not be able to appeal it successfully, with potentially serious consequences in terms of costs, possible criminal sanctions and reputational damage.  That is not an intention that I should readily attribute to Parliament when it enacted Sections 22 – 24 of the 1974 Act.”

4.9.6	Lord Bracadale also agreed with the judgment of the Lord President but again, like Lord Menzies, given the importance of the question as to whether, and to what extent, a tribunal can take into account information which was not available at the time of the service of the Notice, added a few observations of his own on that issue and, in particular, whether the tribunal was entitled to take the evidence of the Exova report into account, he observed, after taking into account the decision of the Court of Appeal in Hague  V  Rotary Yorkshire Ltd stated:-

“45.	... whilst recognising the highly persuasive authority of this decision of the Court of Appeal I have come to the view that this Court should not follow it.  I would respectfully make three points.  First, as your Lordship in the chair has pointed out, the Court of Appeal while approving the approach of Charles J in Chilcott, made no reference to what was said by him at Paragraph 12 of his judgment, mainly that the Court’s function was to identify on the evidence before it, which was not restricted to matters that were in existence before a particular date, what the situation was at that particular date.										[Tribunal’s emphasis]

46.	Secondly, I agree with the general point made by the tribunal at Paragraph 164 of its judgment that it if were subsequently to be discovered, through some form of subsequent investigation, that the factual basis for the imposition of the Notice was actually incorrect and there was in fact no risk, there would plainly be an injustice if the admission of subsequent evidence were impermissible and were to prevent the Notice being cancelled.  That would enable an Enforcement Notice to remain in place against an employer even when the factual basis for its service had been shown not to have existed or to be erroneous.

47.	A similar point was made by Mr Gray on behalf of the respondents when he postulated a possible situation which could arise : a Prohibition Notice was served; subsequent evidence demonstrated beyond any doubt that there was no basis in fact for the service of the Notice; that evidence was accepted at all hands.  Despite that, that evidence were inadmissible the tribunal could not have regard to it and the appeal would require it to be refused.  The recipient of the Notice would be required to carry out, perhaps extensive, work at considerable costs and in the knowledge that failure to do so would constitute a criminal offence.  That would be a singularly unfortunate outcome particularly having regard to the adverse effect on reputation and potential commercial disadvantage which being placed on the Health & Safety Executive Public Register of Enforcement Notices may entail.  

48.	Thirdly, I would respectfully disagree with the conclusion that the approach which in this case was adopted by the tribunal is liable to distort the Section 22 function.  It was argued on behalf of the appellant that there should be nothing to inhibit the inspector serving a Prohibition Notice.  I do not see why the possibility of the factual situation being demonstrated by later evidence to have been different should inhibit an inspector in serving a Notice.  An inspector who decides to serve a Notice must do so on the basis of his factual judgment at the time.  It is not readily apparent why the possibility that later evidence may demonstrate that there was in fact no basis for serving the Notice should create an additional burden on the inspector carrying out his function.  As was pointed out at Paragraph 162 of the judgment, his decision did not weaken the ability of the inspector to prevent the risk of serious personal injury.  The decision had no effect on an inspector’s part to remove what he perceived as a risk of serious personal injury, and to do so instantly.

49.	I agree therefore, that there is no sound basis for restricting appeals under Section 24 to what would essentially be a review of the inspector’s opinion.  An appeal under Section 24 is not restricted in this way.  It follows the tribunal was entitled to take into account the Exova report and that the appeal must be refused.”

4.10	The factual situations in Rotary Yorkshire Ltd and Chevron, and also the present proceedings, are obviously very different and these differences clearly have some relevance to the differences between the decisions in Rotary Yorkshire Ltd and Chevron.  However, subject to such differences, the tribunal preferred the guidance set out in Chevron, since it gave appropriate weight and consideration to earlier guidance of Charles J in Chilcott and, in particular, Paragraph 12 of his judgment, which was not referred to by Laws LJ in Rotary Yorkshire Ltd.  However, in doing so and deciding to follow the now well established guidance of Charles J in Chilcott, as recognised in Chevron, it has to be noted the effect of Paragraph 12 of Charles J’s judgment is limited.  Although this guidance accepted, in ascertaining whether a risk existed at the time of the Notice, a tribunal can take into account evidence bearing upon facts in existence at the time of the Notice, which only emerges at a later time, it does not permit evidence to be produced which is in the nature of ‘hindsight evidence’.

5.1	In light of the facts as found by the tribunal and after applying the legislative provisions and referred to in the previous paragraphs of this decision, the tribunal reached the following conclusion, as set out in the following sub-paragraphs.

5.2	In reaching its decision on this appeal, the tribunal was fully aware that it was not limited to reviewing the genuineness and/or the reasonableness of the inspector’s opinion but rather was required to form its own view, paying due regard to the expertise of the inspector (see Railtrack  v  Smallworld) and to determine the risk at the relevant time, namely the time of the inspection on 3 December 2015, when the Prohibition Notice was issued.

	Having found what was stated by the inspectors, in their evidence, about the absence of power to the DCU at the time of inspection and also what had been told to them by Stephen Adams, the site supervisor about this absence of power was correct, the tribunal had no hesitation in concluding, it would have reached the same decision and issued a Prohibition Notice, when faced with a similar situation, having due regard to the expertise of the inspectors.  In the situation as found by the inspectors, with no power to the DCU, with the analyst due to arrive to carry out the relevant four stage clearance, as he did during the course of the inspection, and Mr Adams, his fellow worker, and the son of Mr Cullen, working in the vicinity of the enclosure, the tribunal is satisfied there was a risk of serious personal injury.  The DCU is required to be fully operational before any other work begins, which includes clearance by a UKAS accredited analyst.  Given the absence of power, as found, and in the absence of any other relevant evidence by Mr Adams, at the time of the inspection, the tribunal could fully understand and accept the conclusion of Dr Jones that there was a reasonably foreseeable risk of exposure to asbestos to those on the site, given the well-known dangers and serious consequences of health of any exposure of asbestos, as outlined elsewhere in this decision.

5.3	Mr Adams and Mr Cullen, in evidence at this hearing, attempted to suggest there had been, at the time of the inspection, an alternative power supply for the DCU from the mains power supply at the farmhouse; but, as found by the tribunal, this was not what the inspectors saw at the time of their inspection or indeed were told to them by Mr Adams at the time of the inspection.  Mr Cullen was unable to confirm on any of his previous visits to the site the DCU had been powered from this alternative supply, prior to the inspection.  Given the fact Mr Adams did not make any mention of this alternative power source for the DCU, the inspectors could not have known or being expected to know of it.  The tribunal concluded that, at best, that the subsequent evidence given at this hearing by Mr Cullen and Mr Adams, in relation to this alternative source of power, for the DCU, was ‘hindsight evidence’; ie what, ‘with hindsight’, should have been done rather than what was actually the position at the time of the inspection.  As seen in Chilcott and confirmed in Chevron, such evidence cannot be taken into account in assessing the relevant risk and the tribunal therefore did not do so.

6.	The tribunal therefore decided, on foot of the appeal by the appellant, the Prohibition Notice, dated 3 December 2015, issued by the respondent, is affirmed.

Employment Judge

Date and place of hearing:	16 – 17 June 2016, Belfast

Date decision recorded in register and issued to parties: