In part two of dealing with enforcement notices health and safety solicitor Sue Dearden chats with Sylvie Wright about the appeal process.
How do you start the Appeal process?
First of all, you have to get the Appeal lodged in time. There’s a really strict timescale for dealing with this. You only have 21 days to appeal a Notice, and day 1 is the day that you’re served.
Realistically you start looking at this on day two of your 21-day period. If you miss the deadline, it’s pretty much fatal to the Appeal.
So, remember you’ve got this very strict period, and it’s a good idea to just make sure that within your organisation because the Notices can be literally handed to anybody when an inspector is walking around, that everybody knows that if they are served with a piece of paper by the HSE they know who they escalate it to and that person knows how time is of the essence and that they need to escalate it quickly.
Typically, a health and safety solicitor will get instructed on day 17 or 18 of that 21-day period. It goes by very fast.
Lodge your Appeal within time is the first thing.
How likely are you to succeed if you do lodge an Appeal?
Many of the Appeals that are lodged are resolved through negotiations. It can be resolved in that way. If it’s going to be an Appeal that’s for tactical reasons then it doesn’t really matter what grounds you use or how you pursue it. The idea is to buy more time or buy negotiating time with the HSE.
The question was how likely it is to succeed – you need to have good ground to succeed.
There isn’t a particular format that you need to follow for lodging an Appeal. Literally, an email to the employment tribunal attaching a copy of the Notice and saying you want to Appeal is enough to get the Appeal moving forwards.
If you’re not appealing tactically, what would be good grounds?
The ground if you’re not using an Appeal for tactical reasons would be that there was no breach of the duty identified in the Notice, that’s a catch-all ground. You could argue that there was a technical defect with the Notice and that would negate it. With Prohibition Notices, you could argue that there was no risk of serious personal injury or there was no risk of serious personal injury going forward and on that basis, the tribunal wouldn’t have issued it.
Just important to remember that the tribunal is not restricted to looking at an Appeal at what the inspector knew or could have reasonably known at the time that the Notice was served.
If you can prove that there was no actual risk at the time, that would be a good ground for appealing and you should succeed. Often Expert evidence will help with that, but just remember that anything done to put things right after the Notice has been served isn’t going to help and wouldn’t be good ground for getting the Notice discharged.
What’s relevant is what was the position at the time of the service of the Notice.
In summary, if you receive a Notice you need to comply with it or negotiate altered terms and comply, or you can appeal it within 21 days. The first day of the 21 days is the day that you receive it.
An Appeal is to the Employment Tribunal and can be used tactically because there’s no fee to pay for issue and wording can be very simple to get it going. Issuing of an Appeal will suspend an Improvement Notice, but not a Prohibition Notice. So, it can allow you more time to negotiate on an Improvement Notice.
If you want your Appeal to succeed, or you want to suspend a Prohibition Notice before the final hearing then independent expert evidence is usually needed, which is where the Finch experts come in.
Finch has a range of engineering, occupational hygiene and health and safety experts. Some of our Experts used to be HSE inspectors themselves so we’ve certainly got the expertise here at Finch Consulting to help you.