Tribunal decision

The Test to be applied

1. Where the Inspector’s decision is appealed  the Tribunal is not limited to reviewing the genuineness and/or reasonableness of the Inspector’s opinions. It was required to form its own view paying due weight to the Inspector’s expertise. The test was not the judicial review test as to whether the decision was reasonable. The court should focus on the point at which the notice was served rather than look at the situation with the benefit of hindsight. Their task was to decide what they would had done at that point in time¹

What the Tribunal can do

2. The Tribunal may either cancel or affirm the Notice². If it affirms the Notice it may do so either in its original form or with such modifications as the Tribunal may, in the circumstances, think fit. In essence any technical difficulty with the Notice should lead to an amendment so that the Notice can be supported

3. Where the Notice has been suspended until after the appeal is determined, the date for completion may have passed by that time. If it is then not possible for work to be completed in time the Tribunal will consider modifying the date and the inspector will need to inform the Tribunal of his opinion in relation to the risk.

Costs

4. In respect of costs, the Tribunal may order one party to pay the other party:

1. A specified sum up to £10,000; or
2. A sum agreed by the parties; or
3. An amount to be assessed by the County Court ³.

Normally an award of costs should be made to the successful party. This power is wider than the power to award costs in other matters which come before Tribunals and, if the Notice is upheld, you should remind the Tribunal of this.

5. You should have a calculation of your costs before going into the Tribunal hearing and be able to hand this to the Appellant and the Tribunal at the end of the case. If the costs cannot be agreed between the parties, the Tribunal may make an order for costs to be paid or for a detailed assessment by a County Court Costs Judge. If you require advice on this issue you should contact Legal Adviser's Office (via your legal liaison point).

6. In the situation where an appeal is withdrawn without a tribunal hearing, then HSE would normally seek to have any costs incurred for the purposes of the appeal paid by the dutyholder. If this arises then you should refer the matter through your line management to your legal liaison point.

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Footnotes

1. Chilcott v Thermal Transfer Limited (2009) EWHC 2086
2. S24(2) HSWA
3. Rule 10 Employment Tribunals (Health and Safety – Appeals Against Improvement and Prohibition Notices) Rules of Procedure 2004