1. When you serve a notice, you should also serve with it information to tell the duty holder how s/he can appeal. If the person in receipt of the notice decides to appeal, they must send notice of the appeal to the employment tribunal within 21 days of service of the improvement or prohibition notice, setting out the grounds for appeal1. The leaflet ETS19 contains a form for the dutyholder to complete to bring an appeal.
2. The 21 days start with the first full day after the date of service. The Tribunal has a discretion to allow an appeal to proceed outside the 21 days if, upon receipt of a written application, it is satisfied that it was not reasonably practicable2 to submit the form in time3.
3. On receipt of the Notice of Appeal, the Tribunal is obliged to copy the document, which sets out the details and grounds of appeal, to you 4. However, in some cases, incorrect forms have been sent in error to the inspector. If you receive notification from a Tribunal that an improvement or prohibition notice has been appealed, you should check that you have been sent the correct form of Notice of Appeal. If not, you should inform the Tribunal and request service of the correct form.
4. When you are sent a Notice of Appeal by the Tribunal secretary, you should check that the Tribunal has been provided with a copy of the notice which is the subject of the appeal. If it has not, you should send a typed copy of the notice to the Tribunal office.
5. The effect of an appeal is to suspend an improvement notice. A prohibition notice is not suspended but the appellant can apply to the Tribunal for a direction suspending the operation of the notice until the appeal is finally disposed of or withdrawn 5. The Tribunal may consider the application either at a hearing or on the basis of written representations from the parties. In either case, the application should be considered as quickly as possible in view of the potential economic effects of an immediate prohibition notice.
6. Often the prohibition notice will be complied with regardless of the appeal. You should report this to the tribunal as a courtesy so that they are aware that an application to suspend the notice is not expected.
7. The fact that an appeal has been lodged does not preclude you from gathering further evidence. If you feel there is more evidence that can be gathered to support your service of the notice then this can be done, although it is preferable in all cases to have enough evidence to support any notice at the time of service, (see Conditions for a Valid Notice in the Notices section.)
8. You (or in certain circumstances the CPS) should inform the Tribunal if you have made a decision to prosecute the individual/company (or a prosecution is almost certain), as a result of the circumstances that led to the service of the notice. You can also ask the tribunal to put the appeal of the notice on hold pending the outcome of the prosecution. Since a Prohibition Notice remains in force until the outcome of the appeal, no difficulty arises. However, an Improvement Notice is suspended where an appeal against it has been brought. This means that the circumstances giving rise to the issue of the notice will persist, possibly beyond the compliance date (depending on when the prosecution is taken).
9. There is no simple rule as to when it is appropriate to ask the tribunal to put the appeal of an Improvement Notice on hold pending the outcome of the prosecution.
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
13. You should discuss the matter and reach agreement with your line manager on the most appropriate course of action and then record any decisions and the reasons for them.
14. Where a notice is suspended before the full hearing of the appeal and the compliance date is passed before that full hearing, the tribunal can insert a new compliance date if it decides to uphold the notice. If, however, the appeal is withdrawn after the compliance date has passed then the dutyholder may find itself immediately in breach of the notice. This should be borne in mind, and you may wish to inform the tribunal of this possibility so that in accepting any withdrawal of the appeal it can deal with the compliance date issue.
15. You should note that you cannot extend the time period of an improvement notice while it is the subject of an appeal. You can withdraw a notice which is under appeal (as long as the expiry date has not passed) but should you do so, the Appellant may ask the tribunal to award costs against HSE.
16. If you decide that the notice should be withdrawn (but the expiry date has passed) then you can indicate to the tribunal that you do not intend to oppose the appeal. Again, the Appellant may seek an order for costs against you and so you should discuss this with the Appellant before agreeing to withdraw the notice and contacting the tribunal (see also ‘Withdrawing a Notice’ in the section Improvement and Prohibition Notices – Drafting Notices.
17. Where a notice has been complied with, the Tribunal may nevertheless decide on its validity. If there is no substance to the appeal, it may be invited to dismiss the appeal. Appellants can decide to proceed with an appeal even after they have complied with the notice, as the service of a notice is a matter of public record which can affect their particular business.