Commencement of criminal proceedings need not stay appeals against prohibition notices in the Employment Tribunal, according to High Court.

It is an easily-overlooked aspect of health and safety law that appeals against prohibition and improvement notices made by the Health and Safety Executive (‘the HSE’) are made to an Employment Tribunal. Yet what happens when the HSE brings criminal proceedings after an appeal has been lodged – can the appellant seek a stay in the Tribunal proceedings to avoid prejudicing itself in the criminal courts? In Shiva Ltd v Boyd (An Inspector of Health and Safety) [2021] EWHC 371 (Admin), the High Court poured cold water on appellants’ prospects, affirming that a stay is a matter of discretion for the Tribunal but the appellant must show that there is a real risk of substantial prejudice to obtain the stay.

Facts.

Shiva Ltd (‘the Appellant’) was subject to two prohibition notices by the HSE on 25 February 2019 in respect of refurbishment work in London. The notices were issued, according to the HSE, as the Appellant’s activities involved a ‘risk of serious personal injury’. One notice prohibited all work associated with a suspended cable the Appellant had made, whilst the second notice prohibited the rising or lowering of a work platform and support structure that hung from the roof.

The Appellant sought to appeal against the notices under the Health and Safety at Work Act 1974 (‘HSWA’). Such an appeal is heard by an Employment Tribunal. Importantly, under the appeal, the Appellant holds no burden of proof: it is for the HSE to show on the balance of probabilities that there was a risk of serious personal injury.

A preliminary hearing was held on 30 January 2020 with a final hearing of the appeal listed for five days commencing on 22 February 2021. However, on 5 August 2020, the HSE notified the Appellant of its intention to bring criminal proceedings against it and its company director for failing to comply with the notices and for further breaches of HSWA.

The Appellant at this point sought a stay of its appeal in the Employment Tribunal. It argued that it would be potentially prejudiced in relation to the criminal proceedings by the action it took in the appeal, including disclosure, whilst there would be no prejudice to the HSE in staying matters.

The application was heard before Employment Judge Truscott QC (‘the Judge’). By this point, the Appellant had made voluntary disclosure including its method statement, certificate and photographs of what happened when the HSE inspectors arrived at its premises. The HSE also disclosed its expert evidence on the deficiencies within the Appellant’s workplace. The Judge held that the Appellant had identified no specific prejudice it would suffer if the stay was refused. He dismissed the suggestion that the HSE was using disclosure in the Tribunal as a ‘fishing expedition’ given the reverse burden of proof and the fact that HSE inspectors have the power to request documents under HSWA anyway.

Accordingly, the Judge refused the Appellant’s stay on 10 November 2020 and then refused – on 9 December 2020 – the Appellant’s application for reconsideration. The Appellant exercised its right of appeal to the High Court.

The High Court.

Under s 11 of the Tribunals and Inquires Act 1992, an appellant before the High Court must show that the Employment Tribunal had made an error of law, misconstrued a relevant statutory provision, made an irrational finding of fact and/or fell into procedural error.

Before the High Court, the Appellant submitted that the Judge’s decision to refuse the stay was wrong in law, unfair and in breach of fundamental rights.

John Howell QC (sitting as a Deputy High Court judge) held that the Tribunal was correct to decide the application on the basis of whether the Appellant had showed a real risk of substantial prejudice. The case law on this was clear. Moreover, there was a public interest in determining civil proceedings in a reasonable time and in determining the appeal of a prohibition notice before criminal proceedings commence. It was not impossible per se to appeal the Judge’s decision, but the decision had to be erroneously founded or otherwise flawed in law.

The Court rejected the Appellant’s submission that it would be prejudiced by the continuance of the Tribunal appeal against the notices: after all, the HSE bore the burden of proof and not the Appellant. The Court also agreed with the Employment Tribunal that any evidence the Appellant choose to adduce during its appeal against the notices would likely be exculpatory rather than incriminatory. Though the criminal proceedings might cause the Appellant to have to make some strategic decisions about how the appeal was conducted, there was no substantive prejudice supporting the application to stay proceedings.

The Court concluded that the Appellant had failed in showing that the Judge made an error of law in deciding not to stay the Tribunal proceedings. The appeal was therefore dismissed.

Commentary.

Those considering appealing against a prohibition or improvement notice are often in a difficult situation, and it frequently makes better commercial sense to effect practical changes to the workplace than wait for months if not years for an Employment Tribunal to hear the appeal against the notice(s).

This judgment further weighs against the utility of commencing the appeal process. As the High Court has affirmed, the question of whether or not to stay such proceedings if regulatory or criminal action is taken will remain a matter of discretion for the Tribunal judge. An appellant must show that it would suffer substantial prejudice if the appeal was to be heard. However, as the Tribunal and Court found in this case, this will often be a difficult point to argue given that the appellant does not hold the burden of proof and any evidence it will seek to adduce would likely point away from criminal conviction. Those seeking to appeal a prohibition or improvement notice need to do so on the understanding that they will have limited opportunity to stay the proceedings before the Tribunal even if criminal proceedings are later brought.

Ryan Ross is a third-six pupil at Farrar’s Building.

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