Mrs P McCollMs N BakshiMs S Duff (instructed by Advocate) for appellantDate 22 October 2021
JUDGMENT
The unanimous Judgment of the Employment Tribunal was that the appellant’s application to strike out the response is refused.
REASONS
[1]The appellant is Stevenson Bros (Avonbridge) Limited, a family business engaged in road haulage. By application to the Employment Tribunal dated E.T. Z4 (WR) 21 March 2019 they appealed against an Improvement Notice issued to them by the respondent. The respondent resists the appeal. By application made at the outset of the third day of the full hearing the appellant seeks strike out of the response under Rule 37(1)(e) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) on the ground that it is no longer possible to have a fair hearing.
Applicable Law
[2]Rule 37(1)(e) provides as follows: “37(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds:- …………….. (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response shall not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.”[3]Rule 41 of the ET Rules, provides that: “The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”[4]In exercising its powers under the ET Rules, the Tribunal is also bound to have regard to the overriding objective, as provided by Rule 2: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Background Initial submissions for the Appellant
Background
[5]At the outset of the third day of the full merits hearing in this case Ms Duff made the following submission on behalf of the appellant. For reasons that will become apparent we quote the submissions verbatim. Ms Duff: “It had been my intention to raise a concern with the Tribunal this morning due to certain events which took place yesterday. However, my concerns have been further amplified this morning. The respondent’s witness Mrs Ross was put on oath at the beginning of her evidence and was told not to discuss her evidence with any other person on each occasion the court adjourned. After court yesterday, I went to the bathroom while Ms Turner [instructing solicitor for the appellant] shut up her laptop. Ms Turner saw Mr Herd with Mrs Ross at the back of the Tribunal Hearing Room. She initially thought nothing of it, assuming that Mr Herd was giving Mrs Ross the standard instructions about when to return. However, she heard Mr Herd say to Mrs Ross: “Much better. She’s such a pain in the ass. The Tribunal is with us. You saw them. I told you at lunchtime if you toned it down it would be better. You saw the Tribunal. It’s much better now you have toned it down.” It was immediately clear to Ms Turner and me that despite the Employment Judge’s repeated warnings not to discuss her evidence that Mrs Ross was discussing her evidence with Mr Herd. It was clear there had been an earlier discussion at lunchtime while she was in the middle of being cross examined. Yesterday [through the glass panel in the door of the respondent’s waiting room] I could see Mrs Ross sitting at a table with a blonde woman. I don’t know if the blonde woman is Mrs Jack, who is still to give evidence. I was aware yesterday in cross examination of a change of tone and demeanour in Mrs Ross’s evidence. Also, there was a point yesterday when Mrs Ross looked directly at Mr Herd. I thought it very odd. It was my intention to raise those matters this morning. However, this morning when I was returning from coffee I looked into the [respondents’ waiting] room and saw Mr Herd with his notebook – the one he is writing in just now - on his lap in conversation with Mrs Ross. I asked an independent solicitor from the claimant’s waiting room, Paul Deans of Pinsent Masons to accompany me to the door of the respondent’s waiting room. Mr Herd was flicking through his notebook. This continued and I recorded on my mobile [filmed through the glass panel in the door of the respondent’s waiting room] Mr Herd and Mrs Ross in conversation with his notebook. Mrs Ross became aware of me through the door and Mr Herd closed his notebook and went to sit in another part of the room. This is a matter that goes to the heart of our whole process.” Initial submissions for the respondent[6]Mr Herd responded as follows: “I did speak to the witness at the back of the court when it finished last night. I just made some general comments about how she was doing. My principal reason for speaking to her was to discuss further witnesses because she is also the instructing client. The main thing we were talking about was whether or not to have a further witness, Nikki Jack led today. We decided not to call Nikki Jack.”[7]The Employment Judge asked Mr Herd to respond to the allegations sentence by sentence. Mr Herd accepted that he had said the following things to Mrs Ross: “Much better. She is such a pain in the ass (referring to Ms Duff). The Tribunal is with us, you saw them….You saw the Tribunal.” He denied that he had said: “I told you at lunchtime if you toned it down it would be better. …It’s much better now you have toned it down.” Mr Herd admitted having had an earlier discussion with Mrs Ross at lunchtime on Wednesday 11 December, but said this was not about her evidence. In relation to the conversation in the respondent’s waiting room this morning (12 December) with the notebook, he said: “I was asking about the HGV issue, whether HGVs are covered by the PUWER provisions.” Ms Duff’s further submissions[8]Ms Duff then submitted: “It is appropriate that Mrs Ross be questioned about the circumstances of what has taken place. Subject to Mrs Ross being questioned about that Mr Herd cannot continue to represent the HSE”. Ms Duff submitted that the Tribunal should make an order to that effect. The EJ then asked Ms Duff: “Do you have authority for that proposition?” Ms Duff replied: “Mr Herd has admitted to the Tribunal that he has spoken to a witness during the course of her giving evidence. He said: “I was asking about the HGV issue” and that’s a clear breach of procedural propriety in these proceedings. Where there is a judicial admission of improper conduct by the solicitor then he cannot continue. I will need to search for the authorities.” She suggested the Tribunal may have the power at common law. The EJ explained to Ms Duff that the Tribunal is a statutory body that only has the powers given to it by statute and the Tribunal Rules and the Tribunal did not have common law powers. The EJ stated: “If you are submitting that we have power to order that Mr Herd cannot represent the HSE we need you to address us on the authority for that proposition”.[9]Ms Duff stated: “These proceedings are tainted by Mr Herd’s conduct. The proceedings should be abandoned due to the conduct Mr Herd has admitted in part before this Tribunal. This witness’s evidence is clearly tainted and she is the Inspector who issued the Improvement Notice. No independent party could conclude that this hearing could fairly continue after what has taken place. This particular hearing is sufficiently damaged because of the conduct of the respondent and her solicitor that it cannot fairly continue”. The EJ said that Ms Duff would need to address the Tribunal on what application she was making under the ET Rules and identify which Rule she relied on. Mr Herd’s further submissions[10]The EJ told Mr Herd that she had noted which of the allegations he accepted and in particular the conversation this morning (12 December) with the witness about the issue of whether HGVs are covered by the PUWER Regulations. The EJ asked him: “Do you accept you were discussing the evidence?” Mr Herd replied: “No, I was asking about the applicability of the provisions to HGVs”. The EJ asked him whether this was with a view to asking a question about this in re-examination and Mr Herd said: “potentially yes”.[11]The Employment Judge asked Ms Duff how much time she required to prepare her application. She said “until 11.30”. The EJ instructed Ms Duff to intimate her application to Mr Herd by 11.30. She then asked Mr Herd how long he required to prepare his response. He agreed that half an hour would be sufficient. The Tribunal adjourned at 10.55 am until 12 noon. Appellant’s application for strike out of the response[12]The hearing resumed at 12 noon. Ms Duff said the appellants’ application was for strike out of the response to the appeal in terms of Rule 37(1)(e) on the grounds that it was “no longer possible to have a fair hearing in respect of the appeal because of what had occurred in the course of the evidence of the Health and Safety Inspector about the Improvement notice which was the subject of this appeal”.[13]In support of her application Ms Duff made the following submission: “Mr Herd has made a judicial admission that he discussed the evidence given by Mrs Ross while she was still in the course of giving her evidence. He said he had been asking about the HGV issue and whether it was covered by the PUWER provisions; asking about the applicability of the provisions and whether they applied to HGVs. The Employment Judge had asked him whether this had been with a view to asking questions about that in reexamination and Mr Herd had said ‘potentially yes’. He had been discussing a witness’s evidence with her and giving advance notice of topics in on-going re-examination. Mr Herd had accepted he spoke to Mrs Ross after court yesterday afternoon. The application is also in terms of Rule 2, the overriding objective to enable the Tribunal to deal with cases fairly and justly. Given what has occurred it would be impossible for this tribunal or any other to reach conclusions based on untainted evidence. Given the significance of the witness and what has occurred, a fair hearing is no longer possible because of what has occurred both by the respondent and by the respondent’s solicitor on behalf of Mrs Ross. Any subsequent hearing would still have what has occurred in this hearing as an issue. Therefore, the only fair outcome is to strike out the response. If the response is struck out, there would be no response to the appeal and the Improvement Notice would fall.” Ms Duff corrected the last point to say that in fact an order would be required from the Tribunal to say that the Improvement Notice was cancelled. The Employment Judge said that even if the appeal was unopposed, it would not necessarily be the case that the Improvement Notice would be cancelled without a hearing. Respondent’s response to strike out application[14]Mr Herd opposed the application for strike out of the response to the appeal under Rule 37(1)(e). He submitted that it was not the case that it was no longer possible to have a fair hearing and that it was not appropriate or proportionate to strike out the response.[15]The Tribunal adjourned to consider the application. Discussion and Decision[16]We considered the authorities on strike out. It is trite law that the striking out of a claim or response is a draconian measure which should not be imposed lightly. (Blockbuster Entertainment Ltd v James [2006] IRLR 630).[17]In Bolch v Chipman [2004] IRLR 140 the EAT UKEAT/0097/17/BA the EAT overturned a tribunal’s decision to strike out the response of an employer who had threatened the claimant with physical violence. In doing so, the EAT set out the steps a tribunal must ordinarily take in determining whether to make a strike out order. Not all of these are relevant in the case before us because the strike out application here is restricted to paragraph (e) - that a fair trial is no longer possible. Thus, in the present case we must consider firstly whether or not a fair trial is still possible. If a fair trial is still possible, the case should be permitted to continue. If not, we must consider whether strike out is proportionate or whether a less draconian penalty should be imposed. In Bolch the EAT held that while the employer’s conduct was reprehensible, there had been insufficient evidence on which the tribunal could conclude that his behaviour amounted to ‘unreasonable conduct of the proceedings’. Furthermore, the EAT was satisfied that the employer’s behaviour would not prevent a fair trial.[18]Similarly, in Laing O’Rourke Group Services Ltd v Woolf EAT 0038/05 a tribunal struck out an employer’s response after its representative had failed to attend a hearing believing it would be adjourned by consent. The EAT overturned the decision saying: “Courts should not be so outraged by what they see as unreasonable conduct as to punish the party in default in circumstances where other sanctions can be deployed and where a fair trial is still possible”.[19]In the recent case of Chidzoy v British Broadcasting Corporation UKEAT/097/17/BA, during a short break in the course of giving evidence at the full hearing of her claim, the claimant had a conversation with a journalist which included some discussion about the case and a particular aspect of her evidence given shortly before the break. The matter was brought to the attention of the Tribunal. Concluding that the claimant had indeed been party to a discussion about her evidence in flagrant disregard of the warnings given by the ET on six separate occasions that she must not do so when still giving evidence, the ET concluded that it had irretrievably lost trust in the claimant and could no longer fairly hear her case. It considered whether there were any alternatives to striking out the claim but concluded that there were none and it therefore struck out the case.[20]The claimant appealed, but the Employment Appeal Tribunal held that the Tribunal had correctly addressed the questions identified in Bolch. Adopting an entirely fair process, it had been entitled to make the findings it did as to what had taken place and had permissibly concluded that the Claimant had thereby unreasonably conducted the proceedings. The ET had gone on to consider whether it could still conduct a fair trial of the Claimant’s case but, having concluded that trust had broken down, had concluded it could not. Asking itself whether it was proportionate to strike out the claim, the ET had considered whether there were any alternatives but had concluded there were none. In the circumstances, the EAT held that that was a conclusion that had been open to the Tribunal and the challenge to its decision to strike out the claim was dismissed.[21]The Tribunal in Chidzoy had found that the fact of the claimant’s discussion with the journalist and its contents, including a reference to matter raised in cross examination that morning, had been reinforced by the “doubtful veracity” of the report of events by her solicitor which had altered significantly between Thursday and Monday. They concluded in these circumstances that the trust which they should have had in the claimant had been irreparably damaged.[22]We turned to consider the facts relied upon by Ms Duff in support of her application for strike out. Although she had originally suggested calling Mrs Ross to give evidence about what had been said to her by Mr Herd, she did not ultimately do so. Nor did she call either Ms Turner or Mr Herd. Instead, in support of her strike out application she relied upon the points which Mr Herd had admitted. We have accepted as fact all the points admitted by Mr Herd. We are not in a position to make findings on any of the facts in dispute in the absence of oral evidence. For clarity therefore, the facts before us are these:(i) Mrs Ross, a Health and Safety Inspector with the respondent is their principal witness in this case. She is also a party in the case and is the client from whom Mr Herd seeks instructions. The case concerns an Improvement Notice which Mrs Ross issued on 1 March 2019.(ii) Mrs Ross was put on oath and began giving her evidence at 11.18 am on Tuesday 10 December 2019. She finished her evidence in chief at around 3.30 pm that day and was cross examined by Ms Duff until around 4pm. The hearing resumed the next day at around 10.05 am with Ms Duff’s continued cross examination of Mrs Ross. The hearing was adjourned for lunch at 1pm. Mr Herd had a discussion with Mrs Ross at lunchtime on Wednesday 11 December.(iii) At some point during the lunch adjournment on Wednesday 11 December, Ms Duff looked through the glass panel in the door of the respondent’s waiting room and saw Mrs Ross sitting at a table with Mrs Jack, whom she understood at that stage to be a witness for the respondent still to give her evidence. The respondent is no longer calling Mrs Jack to give evidence.(iv) Ms Duff continued her cross examination of Mrs Ross when the Tribunal hearing resumed after the lunch adjournment at 2.05pm on Wednesday 11 December. The cross examination concluded at 3.45pm and Mr Herd re-examined Mrs Ross until around 4pm when the hearing concluded for the day. Mr Herd indicated that he would continue his re-examination the following morning and Mrs Ross accordingly remained under oath. The Tribunal rose and left the room. Shortly thereafter, Ms Duff left the room and went to the bathroom. Ms Turner, solicitor for the appellant remained in the room to shut down her laptop. At this point, Mr Herd and Mrs Ross were at the back of the court room. Mr Herd said to Mrs Ross: “Much better. She is such a pain in the ass (referring to Ms Duff). The Tribunal is with us, you saw them….You saw the Tribunal.”(v) The following morning, Thursday 12 December 2019 Mr Herd was in the respondent’s waiting room with Mrs Ross. He had his notebook open in front of him. He asked Mrs Ross about the ‘HGV issue’ and whether HGVs are covered by the PUWER provisions. He was asking about the applicability of the Regulations with a view to potentially asking Mrs Ross a question about this in re-examination.(vi) Ms Duff asked a solicitor from the claimant’s waiting room to accompany her to the door of the respondent’s waiting room. She then filmed Mr Herd and Mrs Ross on her mobile phone through the glass panel in the door of the respondent’s waiting room until Mrs Ross became aware of her through the door and Mr Herd closed his notebook and went to sit in another part of the room.[23]Per Harvey on Industrial Relations and Employment Law (Division R Annotated Statutory Instruments; 2013 ET Rule 37) and the authorities set out above, the operation of Rule 37 requires a two-stage test:(1) Has one of the grounds for strike-out in rule 37(1)(a)–(e) been established on the facts?(2) if so, is it just to proceed to a strike-out in all the circumstances (including whether other, lesser measures might suffice)? Hasan v Tesco Stores Ltd UKEAT/0098/16 (22 June 2016, unreported) (applying HM Prison Service v Dolby above). At paragraph 19 the EAT said this: ''The second stage exercise of discretion in Rule 37(1) is important, not just where the striking out ground established is minor or excusable; it is a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit.'' The basis for this is that rule 37 is permissive, not mandatory.[24]Addressing the first test above, the ground relied upon is (e) – which requires ‘that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the response’. We considered this in light of the facts found above. We noted that there had been a discussion between Mr Herd and Mrs Ross on Wednesday lunchtime. No allegations had been made that any evidence given prior to 2pm on Wednesday 11 December was tainted. The allegations about the discussions on Wednesday lunchtime were not specified beyond an allegation that Mr Herd had told Mrs Ross to ‘tone it down’. This was denied by Mr Herd and we did not feel able to make a finding in fact about it for the reasons given above.[25]The members of this Tribunal are all experienced in considering issues of credibility and reliability of evidence. We are capable of considering the evidence given before and after the lunchtime discussion; of forensically assessing the possibility that a discussion may have tainted the evidence heard after it and of comparing the evidence given before and after that time for possible inconsistencies. It is fair to say that Mrs Ross made a number of concessions in cross examination both before and after 2pm on Wednesday. Any inconsistency in these or in her testimony generally would be apparent from the Judge’s notes of her evidence and may lead to that part of her evidence or her evidence generally being given less weight. We considered that the present Tribunal would be better able to assess Mrs Ross’s evidence fairly than a fresh Tribunal who would not know the reason for relisting of the case.[26]Mr Herd was frank with the Tribunal about the content of the discussion he had had with Mrs Ross on the morning of Thursday 12 December and he volunteered details against his own interest. When asked by the Judge, he immediately conceded that he was potentially going to ask a question in reexamination about the subject of that discussion. His explanation was that this was on the basis that she was his instructing client. This is not a case like Chidzoy (see above) where the claimant’s solicitor gave a report of events which was of “doubtful veracity” and which “had altered significantly between Thursday and Monday”. We did not conclude, like the Tribunal in that case, that we had irretrievably lost trust in either Mrs Ross or Mr Herd and therefore that a fair hearing of the case was no longer possible. We noted that Mrs Ross was responding to a question from Mr Herd on the Thursday morning and we did not find as fact on the basis of the evidence before us that she discussed the case at any other time. (It was accepted that a discussion had taken place with Mr Herd on Wednesday lunchtime but Mr Herd denied that it concerned the case and no evidence was led about the content). Thus, since we do not consider that it is no longer possible to have a fair hearing, we do not find that this ground has been established.[27]In arriving at this conclusion, we have taken into account the stage in the hearing at which the application for strike out was made and the basis given by Ms Duff for the application, which primarily concerned the conversation after court on 11 December and the admitted conversation between Mrs Ross and Mr Herd on the morning of 12 December, prior to Mrs Ross’s continued re-examination. The fact is that Mrs Ross is almost at the end of her evidence and given Mr Herd’s statement yesterday that he was not calling Mrs Jack, the respondent’s case is almost concluded. Because we found as fact on the basis of Mr Herd’s admission that he had discussed a matter with Mrs Ross which related to a potential re-examination question, although we have concluded that the hearing should continue, we consider that a proportionate response to the conduct in question would be to rule that Mr Herd is not permitted to continue his re-examination of Mrs Ross and that her evidence will come to an end. We consider that we have the power to make this ruling under rule 41 set out above. We concluded that adopting this step is a proportionate response which is sufficient to render a fair trial possible.[28]In Force One Utilities Ltd v Hatfield [2009] IRLR 45, the EAT held that a tribunal had been entitled to strike out an employer’s response in circumstances where the employer had made threats of physical harm to the claimant when he left the tribunal building during an adjournment. The EAT stated that there were three questions for the tribunal to answer in such an application: “(i) whether the conduct related to the manner of the proceedings; (ii) whether the conduct made it impossible to hold a fair trial; and (iii) whether there is some response short of barring the wrong-doing party which would be proportionate.” It was said that questions (ii) and (iii) are inter-related. If steps short of a strike out can properly be considered a proportionate response, that can only be because they are sufficient to render a fair trial possible.[29]In the present case, for all the reasons given above, we conclude that the truncation of Mr Herd’s re-examination of Mrs Ross and the conclusion of the respondent’s case (which was, in any event anticipated by Mr Herd’s decision not to call Mrs Jack) is a proportionate response to the conduct in question and would be sufficient to render a fair trial possible. Striking out the response and abandoning the hearing at this point would, in our view be a wholly disproportionate response to what has occurred and not in line with the overriding objective. Contrary to Mr Herd’s accepted statement to Mrs Ross recorded in the findings in fact above, the Tribunal have formed no view whatsoever on the merits of the case at this stage. We simply make the general observation that the case concerns health and safety and it is generally in the public interest that such cases are fully heard and considered.[30]The respondent’s notes (J29/4) went on to say of the method statement (J12) that: “Several possible methods are described leaving it to driver discretion and offering no guidance on the situations where each may be appropriate.” It is an exaggeration to say that “several possible methods are described” in the method statement. The method statement contains only one method for un-sheeting and two methods for re-sheeting the trailer.[31]The respondent’s notes (J29/4) stated: “The guidance does not tell employees what equipment should be used, where it should be obtained or how it should be stored or maintained. NOC issued to review and update this document.” A further paragraph stated: One of the methods described in the instruction document involves using a rope to pull the sheet over. There is no specific instruction of where these ropes should be obtained. Some drivers have their own, otherwise these can be “made up” for them at the store room in the yard. A length of rope is cut for the driver from a larger reel. No records are kept for this. Some ropes are kept by the driver, some are left with the vehicle. There is no inspection programme in place for ropes issued to drivers. Responsibility is placed on driver to ensure rope is in good condition but no instruction or training giving on how this should be assessed. No guidance is given how long a rope should be kept. Explained to company that it is okay to have the checks completed by the drivers but they should understand how to identify concerns with the ropes and there should be a method of recording this such as adding it to daily check sheets. This should also be monitored to ensure checks are being completed. IN issued requiring company to devise a programme of inspection and to ensure any damaged ropes are replaced.” The respondent’s misapprehension that some drivers supplied their own ropes led to her criticism that the drivers were not told where to obtain them. In fact, the drivers knew to get their ropes at the appellant’s yard from Mr Henderson or the transport manager. Thereafter, the drivers would take ownership of them. However, they all came from the appellant’s yard courtesy of Mr Henderson. None of the appellant’s drivers were acquiring ropes from other sources, so the question of where to obtain them did not arise. Furthermore, the appellant replaces ropes. They do not ‘maintain’ them.[32]The respondent issued an Improvement Notice (J20) to the appellant on 1 March 2019. The Notice stated that she was of the opinion that the appellant had contravened sections 2(1) and 3(1) of the Health and Safety at Work Act 1974 and regulation 6(2) of the Provision and Use of Work Equipment Regulations 1998. The reasons given for the Inspector’s opinion were that: “You have failed to ensure, so far as is reasonably practicable, the health, safety and welfare of your employees by failing to ensure that work equipment exposed to conditions causing deterioration which is liable to result in dangerous situations, namely the rope used to remove and replace the sheeting on your trailers, is inspected at suitable intervals.” The Schedule to the Notice stated: “To comply with this Notice you should: 1. Devise and implement a system of inspection and monitoring to ensure that: - the ropes used to remove and replace the sheeting on your trailers are inspected at suitable regular intervals, as determined by your risk assessment; - Where deterioration means that the rope is no longer in a safe condition, it is removed from use. OR 2. You should take any other equally effective measures to remedy the said contravention.[33]The appellant appeals to this Tribunal against the Improvement Notice. For the reasons set out below, the Tribunal finds that the Inspector’s opinion that the appellant was in breach of sections 2(1) and 3(1) of the Health and Safety at Work Act 1974 and regulation 6(2) of the Provision and Use of Work Equipment Regulations 1998 was partly based on a misunderstanding of the facts and of the appellant’s processes as set out above. The Tribunal finds that at the time the Notice was served on the appellant on 1 March 2019 the appellant was not in breach of sections 2(1) and 3(1) of the Health and Safety at Work Act 1974 and regulation 6(2) of the Provision and Use of Work Equipment Regulations 1998. Observations on the
Evidence
[34]The Tribunal had two or three opportunities to view a video produced by the appellant demonstrating the relevant parts of the method set out in the Method Statement for Loading Bulk into WFs/Tippers’ (J12) as the appellant expected it to be carried out. The respondent was asked questions in reference to the video and Mrs Hunter also gave evidence about it, verbally explaining what was happening. Although the video was of assistance as an illustration of the process, nothing more was taken from it than that. The appellant lodged an affidavit containing the evidence of Mr George Henderson, their former yard foreman. Mr Henderson was unable to attend the tribunal hearing because of serious illness. Given the nature of his condition, the tribunal understood that the current pandemic would make his attendance even more inadvisable. In considering the affidavit evidence, the tribunal bore in mind that the respondent had not had the opportunity to test it in cross examination. Applicable Law Substantive Law
Applicable Law
[35]Section 2(1) Health and Safety at Work etc Act 1974 provides as follows: “2 General duties of employers to their employees (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.[36]Section 3(1) Health and Safety at Work etc Act 1974 provides that: “3 General duties of employers and self- employed to persons other than their employees (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.”[37]The Provision and Use of Work Equipment Regulations 1998 (PUWER) states so far as relevant at regulation 6(2): “(2) Every employer shall ensure that work equipment exposed to conditions causing deterioration which is liable to result in dangerous situations is inspected -(a) at suitable intervals; and(b) each time that exceptional circumstances which are liable to jeopardise the safety of work equipment have occurred.”[38]Regulation 2 of PUWER concerns interpretation and provides: “inspection” in relation to an inspection under paragraph (1) or (2) of regulation 6 –(a) Means such visual or more rigorous inspection by a competent person as is appropriate for the purpose described in the paragraph;(b) Where it is appropriate to carry out testing for the purpose, includes testing the nature and extent of which are appropriate for the purpose;” Provisions relating to Improvement Notices and Jurisdiction of the Employment Tribunal.[39]Section 21 of the 1974 Act concerns improvement notices and is in the following terms: “21 Improvement notices If an inspector is of the opinion that a person -(a) is contravening one or more of the relevant statutory provisions; or(b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, he may serve on him a notice (in this Part referred to as “an improvement notice”) stating that he is of that opinion, specifying the provision or provisions as to which he is of that opinion, giving particulars of the reasons why he is of that opinion, and requiring that person to remedy the contravention or, as the case may be, the matters occasioning it within such period (ending not earlier than the period within which an appeal against the notice can be brought under section 24) as may be specified in the notice.”[40]The right to appeal against the notice is contained in section 24 of the 1974 Act: “24 Appeal against improvement or prohibition notice(1) In this section “a notice” means an improvement notice or a prohibition notice.(2) 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 employment 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.”[41]As Mr Pugh submits, the test the tribunal applies to an appeal against an improvement notice is not confined to reviewing the inspector’s opinion on public law grounds, for instance reasonableness. Instead, the tribunal is to decide whether, at the time the notice was served, the breach existed. (HM Inspector of Health and Safety v Chevron North Sea Ltd 2018 SC (UKSC) 132). Discussion and Decision[42]It was common ground that the tribunal’s task in this appeal is to decide whether, at the time the respondent’s Improvement Notice was served, the appellant was contravening the statutory provisions set out therein. In HM Inspector of Health and Safety v Chevron North Sea Ltd 2018 SC (UKSC) 132) the Supreme Court observed (in relation to a prohibition notice, the test for which is that activities involve a risk of serious personal injury) that what matters when the inspector serves the notice is that he is of the opinion that the activities in question involve a risk of serious personal injury. “However,.. when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion but against the notice itself, as the heading of section 24 indicates. Everyone agrees that it involves the tribunal looking at the facts on which the notice was based.” As Mr Pugh and Mrs Duff both submitted, the tribunal must look at all the relevant facts and take its own view on those facts as to whether (in this case, which relates to an improvement notice and not a prohibition notice) at the relevant time the appellant was contravening the relevant statutory provisions.[43]As Mr Pugh further submits, (by reference to Chevron paragraph 18): “The inspector’s opinion about risk, and the reasons why he formed it and served the notice, could be relevant as part of the evidence shedding light on whether the risk existed” but the tribunal is not confined to the evidence that was before the inspector. Mr Pugh also cited Railtrack v Smallwood [2001] ICR 714 (paragraph 44) as authority for the proposition that the tribunal ought to have due regard to the inspector’s expertise where relevant. On this point, the respondent was asked about her areas of expertise and experience in cross examination. She said that she had carried out around 425 inspections where she had been lead investigator, of which around 75 had concerned accidents. She had been involved in a further 300 investigations in which she had not been the lead investigator. The respondent said that she is a ‘general inspector’ covering factories, farms, transport, hospitals, schools and distilleries. She stated that in relation to transport she had done 3 accident investigations, all of which had related to vehicles reversing without banksmen or auditory signals. The respondent was frank with the tribunal that although she had done some transport inspections, she had very little experience of haulage.[44]The ‘relevant statutory provisions’ stated in the Improvement Notice to have been contravened included section 3(1) of the Health and Safety at Work Act 1974. Section 3(1) provides that: “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”. The respondent was asked in examination in chief who she had anticipated may be exposed to risk by the appellant under this section. She said she had had in mind the appellant’s drivers who might be affected if a rope snapped when they were visiting customers’ sites. However, section 3(1) is only concerned with persons not in the employment of the recipient of the Notice, whereas the drivers are the appellant’s employees. The respondent’s answer appeared to suggest that the appellant had been stated to have been contravening section 3(1) erroneously, or possibly as a ‘belt and braces’ approach in the event that any of the appellant’s drivers were not employees. However, in a somewhat shamelessly leading question, the respondent’s then representative (not Mr Pugh) asked the respondent: “In the video we saw that there was a small rubber wheel attached to the end of the rope. If the rope snapped with the wheel attached…?” The respondent replied: “Yes. Someone could be hit by it. It could go into the path of an oncoming vehicle.” The Tribunal concluded from the facts in this case that the likelihood of such an eventuality was exceedingly remote. The rope snapped according to SM’s account of the accident (J16) when he had full tension on it. On the facts before us there had been no previous incidents involving rope failure. Mrs Hunter said it had never happened before to her knowledge. If the rope was being thrown over the trailer it would not be under full tension. From the way this evidence was elicited we were unsure whether it had actually been in the respondent’s consideration at the time she served the notice or whether it had occurred to her for the first time when giving her evidence. We concluded on the facts before us that there was no contravention of section 3(1) of the Act.[45]We turned to consider section 2(1) of the 1974 Act and Regulation 6(2) of the PUWER Regulations. For ease of reference, section 2(1) provides “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.” Regulation 6(2) states: “(2) Every employer shall ensure that work equipment exposed to conditions causing deterioration which is liable to result in dangerous situations is inspected -(a) at suitable intervals; and(b) each time that exceptional circumstances which are liable to jeopardise the safety of work equipment have occurred.”[46]The appellant’s position was that they already had a system of inspection in place to ensure that ropes used to aid re-sheeting were inspected at suitable intervals and replaced when necessary and they were not, therefore, in contravention of the provisions set out in the Notice. We considered the facts at the relevant time and made the findings set out above.[47]We considered the systems the appellant had in place against the requirements of the relevant statutory provisions in s. 2(1) and Regulation 6(2). The appellant operates in terms of a Goods Vehicle Operator’s Licence under which it is required to carry out full inspections of all its goods vehicles every six weeks and keep records of those inspections. Every driver who works for the appellant holds a Class 1 Heavy Goods Vehicle (“HGV”) driving licence and a Certificate of Professional Competence the obtaining of which involved training in carrying and securing loads. At the start of their employment the appellant’s drivers are put through a thorough induction process (J3) and issued with a job description (J4) which states that one of their responsibilities is to: “undertake a daily walk around check/first use check of any equipment prior to use. These must be recorded in your defect book & any defects must be reported to the workshop for rectification. Any defects occurring during your shift should be recorded & reported in same way.” Thus, from the start of their employment, drivers are required to record and report any defects in their defect books. This message is consistently communicated to them and is considered sufficiently important to feature in their job descriptions.[48]The drivers’ induction includes a ‘General Health and Safety Toolbox Talk’, the handout from which is included in the drivers’ handbook. It continues the emphasis on not using defective equipment, specifically stating:• “Do not use any equipment or plant with defects – report any defects immediately to supervisor or site personnel.” and• “If pulling over sheet from the ground check the condition of the ropes before use and ensure you are on a level surface.”[49]The drivers are issued with handbooks and the appellant has a system for ensuring the documents in the handbook are updated as necessary and signed for by their drivers. SM’s training records contained signed copies of the method statement updated in 2018 and signed acknowledgements of updated risk assessments and safety alerts, suggesting that the appellant has a good system in place for communicating updated health and safety policies, systems and instructions to its staff.[50]The ‘Company Rules’ (J8) require employees to: “Check all equipment before use and report any defects”.[51]The appellant has a system in place for assessing risk. Risk assessments are updated annually and additionally in response to any incident arising. It is true that the precise risk of a rope snapping was not foreseen in the hazard sections of the two relevant risk assessments. However, the ‘current controls in place to reduce risk’ in relation to ropes etc were stated as: “All ropes + straps must be checked prior to use to prevent failure.” Mrs Duff submitted that accordingly, the risk assessment recognised the activity, acknowledged that injury could result from rope failure and had control measures in place which were the same as they would have been had the risk assessment specified “rope breaking” in the hazard section. We accepted this submission and noted from Mrs Hunter’s evidence, which we accepted, that the appellant’s risk assessments are reviewed in response to incidents arising.[52]The drivers had been trained in the bulk loading method statement. Item 9 of the method statement (J12) for carrying out the activity in question contains “SPECIAL PRECAUTIONS” and requires the driver to ‘ensure that the rope is in good condition’. If it is discovered not to be in good condition, the appellant either gets another rope out to the driver or the driver can re-sheet using the handle as per step 19 of the method statement and replace the rope on return to the yard.[53]We noted that item 18 of the method statement says that if the easy sheet can be rolled across using the ropes applied earlier, then the driver is to pull the ropes which will pull the sheet across the trailer. However, the next instruction states: “b. If you are having difficult [sic] pulling the sheet across please follow the instructions for rolling the sheet across from the trailer catwalk.” Thus, if the rope is difficult to pull across, the instruction is to use the alternative method at item 19.[54]The vehicle defect checking system does not require the driver to check his rope as part of the daily vehicle inspection before setting off and the defect report sheet does not contain boxes for anything not integral to the vehicle or trailer. However, the system was relevant to rope inspection to the extent that if, on inspecting a rope or strap etc prior to use, the driver found it needed replacing, he was required to note this on the free form section of his daily defect report form. This was consistent with the instruction in the job description. In the event that such a defect was noted on the form, presumably the driver should not tick the “nil defect” box (though SM has done so at 15/67).[55]With regard to Regulation 6(2) of PUWER, we accept that the rope would be ‘work equipment’ and that being used in all weathers, coiled and stowed in a box might amount to ‘conditions causing deterioration which is liable to result in dangerous situations’. It follows that there ought to be a system for inspecting it at suitable intervals and each time exceptional circumstances liable to jeopardise its safety occur. Regulation 2 defines “inspection” for this purpose as: “(a) such visual or more rigorous inspection by a competent person as is appropriate for the purpose described in the paragraph; (b)Where it is appropriate to carry out testing for the purpose, includes testing the nature and extent of which are appropriate for the purpose;” With regard to (b), we did not understand it to be suggested by the respondent that it was appropriate to carry out testing of the rope and no method for doing so was put forward. We concluded that 6(2)(a) appeared to be the applicable provision.[56]“Competent persons” are covered in the respondent’s Approved Code of Practice and Guidance (J32 page 24 paragraphs 90 to 94). They are persons who have the necessary knowledge and experience. The inspection can be done by an in-house employee with an adequate knowledge of the equipment to enable them to know what to look at (the key components) [In this case, the rope]; what to look for (fault-finding) [In this case, deterioration or damage]; and what to do (reporting faults, making a record, who to report to) [In this case, drivers use the free form section of the defect report sheet, which goes to the traffic manager.] Class 1 HGV drivers are experienced in working with re-sheeting ropes. They are trained in securing loads. We considered that the respondent’s drivers were ‘competent persons’ in relation to inspecting their ropes. We accepted Mr Henderson’s affidavit evidence that the only way to check a rope was to feel it and look at it to see whether it was worn or damaged. We considered that the appellant’s method statement (J12) gave their drivers detailed and specific steps to follow in carrying out the loading task. As said above, we did not agree with the respondent’s comment that the method statement was vague. The instruction at 9e of the appellant’s method statement was to ensure the rope was in good condition before using it. We did wonder whether it could be improved by adding something like: “Inspect your rope by feeding it through your hands to feel it and see whether it is worn or damaged” to paragraph 9.e. of the method statement, but that is arguably just stating the obvious and we did not think that the failure to spell this out was a contravention of the relevant provisions. We accepted Mrs Hunter’s evidence that the drivers knew that in the event that the rope or any other piece of equipment needed to be replaced they required to say so on the defect report form, notify the transport manager and obtain a replacement rope from the yard foreman. We considered that the defect report forms dated 31 December 2018 (J15/67) and 3 January 2019 (J15/69) were clear evidence that drivers knew that the form was to be used for this purpose. This corroborated Mrs Hunter’s evidence to that effect.[57]The appellant’s duty under section 2(1) is to ensure, so far as is reasonably practicable, the health, safety and welfare at work of its employees. Straightforward hazards such as possible rope failure may only require simple safety precautions for control, such as visual and manual inspection to identify defects or deterioration and ensure a rope is safe to use. As stated in the previous paragraph, the way to check a rope is to feel it and look at it. Obviously, there is a residual risk that even a careful inspection may not reveal a weakness in a rope. We concluded that, subject to our reservations in paragraph 60 below, the appellant had a system in place for inspecting resheeting ropes at suitable intervals; that this was a control measure for the risk of rope failure; and that it was sufficient to meet section 2(1) of the Health and Safety at Work Act 1974 and PUWER regulation 6(2).[58]With regard to the accident itself, Mr Pugh submitted that SM’s report that he checked the rope (J29/2) must be assessed critically. He submitted that the tribunal had the photographs of the rope (J27) and the evidence of the respondent as to the condition of the rope. For the appellant, Mrs Duff submitted that there had been no analysis of what had caused the rope to break and any findings to that effect would be speculation. She said that the tribunal can only consider the evidence before it and that the only evidence about the condition of the rope prior to it snapping was in Mrs Jack’s note at J29/2 that “IP said he checked the condition of the rope prior to use and found no problem with it”. SM was the only person who knew the condition of the rope before it broke. Obviously, the photographs (J27) were taken after the break. Although they show the rope frayed, they do not give any indication of what it looked like beforehand. We agreed with Mrs Duff’s submission that the tribunal is not in a position to make any finding that the rope was frayed and looked in poor condition before it snapped. The respondent had not recovered, tested or inspected the actual rope.[59]The tribunal concluded that the system the appellant already had in place for inspecting ropes satisfied regulation 6(2) of PUWER. The PUWER Guidance (J32 at paragraph 15) states: “The term ‘inspection’ is used in PUWER. The purpose of an inspection is to identify whether the equipment can be operated, adjusted and maintained safely and that any deterioration (for example, any defect, damage or wear) can be detected and remedied before it results in unacceptable risks.” The Guidance also says at paragraph 81 (J32 page 23): “Inspection does not normally include the checks that are a part of the maintenance activity although certain aspects may be common. For the purpose of this regulation, inspection does not include a pre-use check that an operator makes before using the work equipment. While inspections need to be recorded, pre-use checks do not.” Firstly, as stated above, there was no question of ropes being ‘maintained’. The purpose of the instruction at 9e of the method statement was not related to maintenance of the rope, the purpose was to inspect it in the manner described in paragraph 15 of the PUWER Guidance quoted above, to identify whether it could be operated safely and to detect any deterioration or defect. If such deterioration or defect were identified, the system was firstly, (as specified in step 18b of the method statement) to use the alternative method at 19 and replace the rope; and secondly, to note the defect/requirement for a replacement on the defect report form. Thus, although the appellant referred to the inspection of the rope as a pre-use check on occasions, we concluded that it met the definition of an inspection in all respects, though the recording system could be more robust.[60]PUWER Regulation 6(3), which was not referred to in the Improvement Notice provides that: “(3) Every employer shall ensure that the result of an inspection made under this regulation is recorded and kept until the next inspection under this regulation is recorded.” With regard to the inspection recording system, Mrs Duff submitted that if a driver found a defect with a rope or strap, the system was for them to record this on their defect form (J15) and report it to the traffic manager. She pointed to the evidence of Mrs Hunter mentioned in paragraph 56 above, that a number of defect report forms each year referred to ropes or straps. Indeed, SM had himself submitted two defect forms on 31 December 2018 (J15/67) and 3 January 2019 (J15/69) where he had noted that a trailer roof strap was needing replaced. As mentioned earlier, we accepted that this evidence demonstrated that drivers knew the system for reporting that a rope or strap was defective and needed to be replaced. However, regulation 6(3) appears to envisage that the fact of the inspection is recorded, not just where there is a problem, but also where no defect is found and the rope inspected is in good condition, as happens with the vehicle reports. As Mr Pugh pointed out at paragraph 21 of his written submission, it would not be clear under the appellant’s reporting system that the rope inspection was being recorded as having taken place if no defect was found. As he put it: “The nil defect report cannot therefore be taken to confirm no defect on a piece of equipment not covered by those checks.” This could be sorted out fairly easily, for example by adding a box for re-sheeting ropes and straps to the defect report form (J15). In his additional remarks, Mr Pugh made the valid point that the purpose of adding a box for rope inspection on the form would be that it creates a prompt to the driver to check the condition of the rope. We took his point, though, to be fair, the method statement specifically prompts the driver to inspect the rope and ensure it is in good condition. We were satisfied that the appellant had a system in place for inspecting resheeting ropes. We were not asked to modify the Improvement Notice by replacing the contraventions originally libelled with a reference to regulation 6(3). Arguably in any event, the appellants had a system in place to record the inspection in the free form section of the daily defect report form, so any such modification would not be either proportionate on the facts of this case or fair to the parties, who would not have had the opportunity to make submissions on the point.[61]The Tribunal concluded from the evidence of Mrs Hunter and the affidavit of Mr Henderson, which it accepted, that the respondent’s understanding that some drivers supplied their own ropes and that Mrs Hunter did not know who had their own ropes and who had company ropes was erroneous. Furthermore, the respondent had also accepted Mrs Jack’s erroneous assumption that the knot in the rope seen in the photograph (J27) was from an earlier repair. This then raised an issue about maintenance of ropes, which does not, in fact arise, because ropes are simply replaced and not maintained. We also concluded that the appellant’s method statement and aspects of the process were not accurately or fairly summarised in the respondent’s and Mrs Jack’s notes (J29, page 4) for the reasons set out in our findings in fact above (paragraphs 25 - 27 and 29 – 31). These serious misunderstandings meant that at the point when she reached her opinion that the appellant was contravening the statutory provisions, the respondent did not have an accurate picture of the facts about the duty holder’s activities, the hazards and the control measures in place to manage them. If the respondent thought that drivers were acquiring and knotting together ropes from anywhere, and repairing them with knots, instead of replacing them, we can see that an improvement notice would be entirely proportionate. However, that picture was not accurate.[62]In all the circumstances, we have reached the unanimous conclusion that the Improvement Notice cannot stand and should be cancelled. The appeal succeeds.[63]It remains for us to thank Mr Pugh and Mrs Duff for their excellent presentation of the respective cases and for the clarity of their submissions. M Kearns
Applicable Law
[1]The appellant is Stevenson Bros (Avonbridge) Limited, a family business engaged in road haulage. On 16 January 2019 an accident took place involving one of the appellant’s drivers. The driver was re-sheeting his trailer by pulling the easy sheet back across the top of the trailer from the ground using a rope. The rope snapped and the driver fell backwards and broke his leg. The respondent conducted an investigation culminating in the issue of an Improvement Notice to the appellant on 1 March 2019. By application to the Employment Tribunal dated 21 March 2019 the appellant appealed against the Notice. In a Judgment sent to the parties on 25 January 2021 the Improvement Notice was cancelled by the Tribunal. Application for expenses[2]The appellant makes an application for expenses under rule 76 of the Employment Tribunal Rules of Procedure on two grounds:(1) that the respondent’s solicitor acted unreasonably in the way in which part of the proceedings were conducted, namely by speaking to the respondent during her evidence resulting in inquiry requiring to take place and submissions to be made to the Tribunal; and(2) that the respondent had no reasonable prospect of success in resisting the appeal against the Improvement Notice.[3]With regard to Ground (1), the parties are in agreement that an order for expenses should be made of consent in the sum of £3,000 and we so order.[4]Turning to Ground (2), the appellant’s submission was that the respondent had no reasonable prospect of success in resisting the appeal against the Improvement Notice and that the Tribunal should accordingly find that threshold ground established and exercise its discretion to order the respondent to pay the appellant their whole expenses of the appeal as taxed by the Auditor of the Sheriff Court under Rule 78(1)(b). In support of this, it was submitted that the issuing of the Notice proceeded on a lack of understanding of the appellant’s processes by the respondent and Mrs Jack as noted in the Judgment of the Tribunal sent to the parties on 25 January 2021 at paragraphs 29 and 31. Specific reference was made to paragraph 33 of the Judgment where the Tribunal found that: “the Inspector’s opinion that the appellant was in breach of section 2(1) and 3(1) of the Health and Safety at Work Act 1974 and regulation 6(2) of the Provision and Use of Work Equipment Regulations 1998 was partly based on a misunderstanding of the facts and of the appellant’s processes...” and that: “at the time the Notice was served on the appellant on 1 March 2019 the appellant was not in breach of sections 2(1) and 3(1) of the Health and Safety at Work Act 1974 and regulation 6(2) of the Provision and Use of Work Equipment Regulations 1998”.[5]The application for expenses referred to paragraph 61 of the Tribunal’s Judgment where it found that the respondent’s understanding that some drivers supplied their own ropes and that Mrs Hunter did not know who had their own ropes and who had company ropes was erroneous. Furthermore, it was said that the respondent had also accepted Mrs Jack’s erroneous assumption that the knot in the rope seen in the photograph (J27) was from an earlier repair. This then raised an issue about the maintenance of ropes, which did not, in fact arise, because ropes were replaced and not maintained. The Tribunal had also concluded that the appellant’s method statement and aspects of the process had not been accurately or fairly summarized in the respondent’s and Mrs Jack’s notes. The Tribunal had concluded that these serious misunderstandings meant that “at the point when she reached her opinion that the appellant was contravening the statutory provisions, the respondent did not have an accurate picture of the facts about the duty holder’s activities, the hazards and the control measures in place to manage them.”[6]The application for expenses stated that the Improvement Notice had been issued on the basis of a lack of experience of the road haulage industry and a lack of understanding of the appellant’s processes and that had the respondent had knowledge and experience of the industry and properly understood the processes, she would not have issued the Notice. Accordingly, the application sought an order for the legal expenses incurred by the appellant in appealing the Notice and attached a Schedule detailing expenses in excess of £47,000. Response to the application[7]The respondent opposed the application for expenses under Ground (2). They reminded the Tribunal that expenses are the exception and not the rule in the Employment Tribunal. They referred to the case of Lothian Health Board v Johnstone [1981] IRLR 321 and stated that the test was whether the respondent knew or ought to have known, had she gone about the matter sensibly, that her case had no reasonable prospect of succeeding. It was submitted that the threshold of no reasonable prospect had not been met in this case. They relied upon the respondent’s submissions at the original hearing as demonstrating the basis upon which the respondent thought their response to the appeal had a reasonable prospect. The respondent had been legally represented throughout and this was the view of its legal advisers. The appellant was making its submissions with the benefit of hindsight now the judgment had been issued. In support of this they cited ET Marler Ltd v Robertson [1974] ICR 77 in which Sir Hugh Griffths observed: “Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the combatants when they took up arms.”[8]The respondent’s solicitors pointed out that the application for expenses had been the first time the respondent had been put on notice that the appellant thought they had no reasonable prospect of resisting the appeal. No costs warning letter had been issued. They stated that the appellant had made a strike out application on 12 December 2019. It had been open to them to request strike out on the ground of no reasonable prospect of success as an additional ground had they considered this to be the case at that stage but they had not done so, despite the fact that the respondent’s evidence was all but concluded at that point.[9]With regard to the paragraphs of the Judgment founded upon, it was submitted that the appellant had sought to cherry pick, taking some paragraphs out of their wider context. Furthermore, the finding that the respondent had very little experience of haulage was the respondent’s own evidence and not a criticism of her given the other findings about the breadth of her duties and experience. The Tribunal had referred to the respondent as “frank” and had, in any event found that the respondent’s opinion was “partly”, not wholly based on a misunderstanding of the facts and the respondent’s processes. Oral submissions for the appellant[10]In his oral submission on behalf of the appellant, Mr Bergin reminded the Tribunal that under Rule 76(1)(b), it may make an expenses order where it considers that the response had no reasonable prospect of success at the time it was lodged. It is a two-stage test. The first stage is to assess whether the threshold test has been met that there was no reasonable prospect of success. That is an objective test based on the facts at the time. The issue is not whether the respondent thought they had a good case, but whether they actually did. Mr Bergin referred the Tribunal to the case of Opalkova v Acquire Care Limited, [2021] 8 WLUK 265 at paragraphs 24 and 25: “24 Accordingly, there are three key questions. First, objectively analyzed when the response was submitted did it have no reasonable prospects of success; or alternatively at some later stage as more evidence became available was a stage reached at which the response ceased to have reasonable prospects of success? Second, at the stage that the response had no reasonable prospects of success did the respondent know that was the case? Third, if not, should the respondent have known that the response had no reasonable prospect of success? 25 “The question of whether a response had reasonable prospects of success is objective and is the threshold for making a preparation time order under Rule 76(1)(b) ET Rules, even if the respondent was not aware, and should not reasonably have been aware, that the response had no reasonable prospect of success. However, the lack of understanding of the merits of the response would be relevant, along with other matters, to the discretionary question of whether a preparation time order should be made.”[11]Mr Bergin submitted that at the first stage it was first necessary to objectively analyze whether, at the time of lodging, the response had no reasonable prospect of success. If the answer to that question is yes, then the issue of whether the respondent knew or ought to have known that would be relevant to the exercise of the discretion. Mr Bergin submitted that the Tribunal would be entitled to conclude the response had no reasonable prospect of success even though there were factual disputes requiring evidence that it had to resolve. He referred to the following paragraphs of the Judgment sent to the parties on 25 January 2021 in support of his submission: 12, 13, 25, 26, 27, 29, 31,33 and 61. Mr Bergin submitted that when one considered those findings in fact in the Judgment, it is clear that the Improvement Notice was issued on the basis of a serious misunderstanding of the facts. He stated that on a proper analysis of those facts, any attempt to resist an appeal was bound to fail. There was no other possible outcome. Mr Bergin said that it was also not possible to hold that the respondent was not aware of the lack of prospect in circumstances where the appeal was opposed on the basis of the entirely misconceived opinion of the Inspectors. The respondent misunderstood the facts and that misunderstanding led her to issue the Improvement Notice. Any attempt to resist was bound to fail. When viewed objectively there had been no other possible conclusion. Mr Bergin submitted that the respondent’s misunderstanding of the facts had infected the whole process. That was or ought to have been known at the time the response to the appeal was lodged.[12]Mr Bergin referred the Tribunal to the speech of Lady Black (paragraph 18) in the case of HM Inspector of Health and Safety v Chevron North Sea Ltd 2018 SC (UKSC) in which she said this in relation to the issue of a prohibition notice: “18. When the inspector serves the notice, section 22 makes clear that what matters is that he is of the opinion that the activities in question involve a risk of serious personal injury. If he is of that opinion, the notice comes into existence. However, as it seems to me, when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion but against the notice itself, as the heading of section 24 indicates. Everyone agrees that it involves the tribunal looking at the facts on which the notice was based. Here, as the inspector spelled out in the notice, the risk that he perceived arose by virtue of corrosion of stairways and gratings giving access to the helideck, and the focus was therefore on the state of that metalwork at the time when the notice was served. The tribunal had to decide whether, at that time, it was so weakened by corrosion as to give rise to a risk of serious personal injury. The inspector’s opinion about the risk, and the reasons why he formed it and served the notice, could be relevant as part of the evidence shedding light on whether the risk existed, but I can see no good reason for confining the tribunal’s consideration to the material that was, or should have been, available to the inspector. It must, in my view, be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was. If, as in this case, the evidence shows that there was no risk at the material time, then, notwithstanding that the inspector was fully justified in serving the notice, it will be modified or cancelled as the situation requires.”[13]Mr Bergin submitted that in the present case, the facts upon which the Notice was based were wrong. As the Tribunal held, the respondent had issued the Notice on the basis of misunderstandings and wrong assumptions. Therefore, the appeal was bound to fail and the threshold test had been met. Mr Bergin submitted that given what the tribunal had held and what had been known to the respondent at the time, not only had the threshold test been met but the Tribunal should also exercise its discretion and make an order in the terms suggested.[14]Mr Bergin then addressed the written response to the application. With regard to Lothian Health Board v Johnstone, that case predated the current rules, although he did not take particular issue with it. Furthermore, the respondent’s reliance on the submissions made at the conclusion of the evidence was misconceived because the Tribunal had rejected those submissions. It was clear from the case of Radia v Jefferies International Limited, [2020] IRLR 431 that the test is an objective one. It is not a question of whether the respondent thought she had a good case, but of whether she actually did. The fact that she was legally represented was neither here nor there.[15]With regard to legal advice, Mr Bergin pointed to paragraph 36 of Brooks v Nottingham University Hospitals NHS Trust, [2019] 10 WLUK 271, in which the EAT said this: “Reliance upon advice is a factor that may be taken into account by the Tribunal but positive professional advice will not necessarily insulate a Claimant against an award for costs. There may be many reasons for the advisers reaching a different view as to the prospects of success from the Tribunal: these may include the fact that the advice was based on more limited material than that which is considered by the Tribunal, the advice being based on the Claimant coming up to proof, or the advice being negligent. In the absence of any evidence to the contrary, the Tribunal is entitled to proceed on the assumption that a represented party has been properly and appropriately advised as to the merits.” He submitted that it did not matter what the legal advisers thought. That would not prevent the Tribunal from making an award of expenses in the terms sought. This was not a case in which advice had been given on limited material. There had been no new facts between the issue of the Improvement Notice and the hearing. There had been no failings on the part of the respondent’s advisers in this case of the sort that had occurred in Brooks. Any advice given to her would be based on her account which included misunderstanding of the facts, so the advice would be tainted by the misunderstanding. The critical issue was what the respondent knew or ought to have known at the time. All roads lead back to this misunderstanding, which persisted throughout the case and led the respondent to resist the appeal. It should have been clear and apparent to them at this stage that there was no reasonable prospect of resisting the appeal.[16]Mr Bergin submitted that whilst the suggestion that the respondent was benefitting from hindsight had a superficial attraction, this was a trap. On a proper analysis, it was clear, he said, that hindsight was not a feature of this application. No evidence had been led at the tribunal hearing that had not been known at the time. We are dealing purely with what was known by the respondent at the time she lodged her response to the appeal. Mr Bergin referred to paragraph 65 of Radia v Jefferies International Limited, [2020] IRLR 431 in which Auerbach J in the EAT said this: “I should say something further about how the Employment Tribunal should approach an application seeking the whole costs of the litigation, on the basis that the claim 'had no reasonable prospects of success' from the outset. It should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation.” Mr Bergin submitted that the respondent was conflating these two issues. On a proper analysis of the case, there was no hindsight here.[17]In conclusion, Mr Bergin submitted that on a proper analysis of the case, it was clear that the response to the appeal had no reasonable prospect of success. The threshold had been met and the Tribunal ought to exercise its discretion to make an order for expenses under rule 78(1)(b) and remit the matter to the Auditor.[18]Once he had heard Mrs Dickson’s oral submission, Mr Bergin stated that a cost warning letter was not a prerequisite for an expenses application. In any event, the appellant had emailed the respondent in December 2020 to say that if they were happy to concede the appeal at that stage, the appellant would not seek costs. So, whilst no formal cost warning letter had been sent, the respondent was on notice that costs may be an issue Oral submissions for the respondent[19]For the respondent, Mrs Dickson said that whilst she and Mr Bergin were in agreement about the test to be applied, they differed in the application of that test. She emphasized that the test is a very high threshold. It is not that the response had ‘poor prospects’ or that the prospects were below 50%. The test is whether there were no reasonable prospects. Mrs Dickson said that she agreed that the three questions posed in Opalkova were relevant here.[20]Mrs Dickson’s primary submission was that the appellant had not met the threshold test. In an appeal against an Improvement Notice, the Tribunal has to look at the facts and determine whether the appellant was in breach of the provisions set out in the Improvement Notice at the time the Notice was issued. In this case the provisions were sections 2(1) and 3(1) of the Health and Safety at Work Act 1974 and Regulation 6(2) of the PUWER Regulations 1998. She referred to paragraph 45 of the Tribunal’s Judgment in which Regulation 6(2) is set out. The prospect of successfully resisting the appeal depended on the prospect of the Tribunal concurring that those sections were being breached by the appellant at the time the Notice was issued. Mrs Dickson emphasized that the inspection by the respondent had taken place because there had been an accident in which someone had been injured. As the Tribunal had recognized in paragraph 1 of its Judgment, the appellant’s employee had broken his leg. The accident had been caused by work equipment that had been exposed to conditions causing deterioration as described in Regulation 6(2) of PUWER. Mrs Dickson submitted that the fact of the accident suggested the deterioration had not been identified and that it had appeared to the respondent that there had been a breach of the obligation to ensure the equipment was inspected. Mrs Dickson submitted that the fact of that accident alone established that there were prospects for a breach causing a risk to personal safety. Mrs Dickson submitted that the Tribunal had heard considerable evidence about the systems the appellant had in place for inspecting and identifying risk. Considerable explanation had been required as to how those systems operated, because, in her submission, it was not immediately clear how the appellant’s systems worked. They were open to interpretation.[21]Mrs Dickson referred to paragraph 51 of the Tribunal’s Judgment. The general obligation in the Health and Safety at Work Act 1974 required an employer to have a system for assessing risk. Mrs Dickson submitted that it was clear that paragraph 51 contained an assessment by the Tribunal of how the system operated based on the evidence they had heard. She submitted that in respect of this evidence, the Tribunal could have reached the alternative conclusion that the risk assessment was insufficient given that it did not refer specifically to the risk of a rope breaking. It was only on assessment and interpretation of that evidence that the conclusion could be reached and had the Tribunal come to an alternative conclusion on that evidence they may have found a breach of the Act.[22]Mrs Dickson then turned to the evidence regarding the appellant’s inspection system which underpinned the Tribunal’s consideration of whether the appellant had breached Regulation 6(2) of PUWER. She referred to paragraphs 54 and 56 of the Tribunal’s Judgment. She pointed out that the inspection system for ropes is not held in one document. Evidence had to be pulled together from various different sources. There had been considerable questioning in relation to the vehicle defect checking system to identify whether or not it satisfied Regulation 6(2). It had to be looked at alongside the method statement as referred to in paragraph 56. She referred specifically to line 8 on page 26 of the Judgment where the Tribunal said this: “The instruction at 9e of the appellant’s method statement was to ensure the rope was in good condition before using it. We did wonder whether it could be improved by adding something like: “Inspect your rope by feeding it through your hands to feel it and see whether it is worn or damaged” to paragraph 9.e. of the method statement, but that is arguably just stating the obvious and we did not think that the failure to spell this out was a contravention of the relevant provisions.” Mrs Dickson submitted that much like the risk assessment process, in relation to the inspection process, evidence had to be heard, assessed and analyzed by the Tribunal before it could decide there had not been a breach of Regulation 6(2). Mrs Dickson submitted that because there was no specific inspection system in one document and no instructions given on how to inspect the ropes, the Tribunal could have formed the view that there had been a breach of Regulation 6(2). She stated that where there is scope for different interpretations of the evidence, it is incorrect for the appellant to present the position that there was no reasonable prospect of success. The prospects were dependent upon the Tribunal’s interpretation of the evidence. That evidence could have been interpreted in a different way.[23]With regard to timing, Mrs Dickson referred to paragraph 67 of Radia in which the EAT had emphasized the importance of judging reasonable prospects on the basis of information known or reasonably available at the start. Radia had been a disability discrimination case in which the claimant had lied to experts and an argument had been made that the grounds should never have been advanced. Mrs Dickson said that the facts were quite different in the present case but she agreed with Mr Bergin that the test was relevant. In this case, the appellant had only raised the argument of ‘no reasonable prospect of success’ once informed by a successful judgment. She submitted that the appellant had had ample opportunity to provide a costs/expenses warning and to set out their position on this in a costs warning letter but no such letter had been sent out at any stage of the proceedings. The appellant’s application to strike out the response had been made after the conclusion of the respondent’s evidence. Dues to factors outwith anyone’s control, there had then been a break of one year before the hearing could continue. Yet during all that time, when the appellant was aware of the respondent’s evidence in detail, no costs warning letter had been sent. Mrs Dickson referred to the second and third questions set out in Opalkova: did the respondent know there were no reasonable prospects? If not, should the respondent have known? She turned these around on the appellant and asked: did the appellant know there were no reasonable prospects? If so, why did they not send a costs warning letter if the position on prospects was so apparent? Mrs Dickson said that her position was that it was not apparent to any party at the outset or at any stage that the respondent had no reasonable prospect of success. The respondent’s prospects may have been below 50% but that is not enough. There has to be no reasonable prospect for the appellant’s submission to be successful.[24]Mrs Dickson then referred to the appellant’s written submissions lodged and then expanded upon by Mr Bergin. He had explained that the appellant had taken the view that the Improvement Notice proceeded on a lack of understanding by the respondent of the appellant’s processes and that she had very little knowledge of the haulage industry and that had she had more experience of the industry and properly understood the processes, she would not have issued the Notice. Mrs Dickson submitted that those facts do not amount to nearly enough to establish no reasonable prospect of success. They only speak to one aspect of the knowledge of the inspector who served the notice. Inspectors can and regularly do work across a large number of industries. Their knowledge is of health and safety, assessment of risk and maintaining public safety.[25]It is for the Tribunal to look back at the facts at the time the Notice was served. Mr Bergin had focused entirely on a perceived misunderstanding on the part of Mrs Jack. He was framing that with the benefit of hindsight and looking at it from one perspective. The inspection process is not black and white and fully understood or misunderstood. It is open to considerably more interpretation than that. In part of Mr Bergin's submissions, he had taken the Tribunal to the paragraphs of the Judgment about the process for replacement/ supply of ropes. That factual evidence is irrelevant. The question before the Tribunal was whether there was a breach of the 1974 Act or the Regulations. Inspection of ropes was what was relevant. Mrs Dickson submitted that the three-stage test in Opalkova is failed at the first hurdle. The respondent's case is not one which had no reasonable prospect of success. At the outset of the case and throughout the evidence, at its highest it could be said that the prospects for either party were uncertain. In a case where the Tribunal is considering the systems in place to avoid personal injury in a context where there has been an injury, it cannot be said there was no reasonable prospect of success. Discussion and Decision[26]It is important to bear in mind that expenses are the exception and not the rule in the Employment Tribunal. Rule 76(1) provides that a tribunal may make a costs order but must consider whether to do so where it finds that a party has acted as described in the Rule.[27]As Mr Bergin submitted in reference to Opalkova, there is a two-stage test. (The first question is stage one and questions two and three are considered at stage two): “24 Accordingly, there are three key questions. First, objectively analyzed when the response was submitted did it have no reasonable prospects of success; or alternatively at some later stage as more evidence became available was a stage reached at which the response ceased to have reasonable prospects of success? Second, at the stage that the response had no reasonable prospects of success did the respondent know that was the case? Third, if not, should the respondent have known that the response had no reasonable prospect of success? 25 “The question of whether a response had reasonable prospects of success is objective and is the threshold for making a preparation time order under Rule 76(1)(b) ET Rules, even if the respondent was not aware, and should not reasonably have been aware, that the response had no reasonable prospect of success. However, the lack of understanding of the merits of the response would be relevant, along with other matters, to the discretionary question of whether a preparation time order should be made.”[28]We first considered whether the threshold of no reasonable prospect of success had been met. As set out in Radia and Opalkova, the test is an objective one and turns on whether, at the point when the response was lodged, there was no reasonable prospect of it succeeding.[29]In the Chevron case, at paragraph 14, Lady Black said this in respect of a prohibition notice:. “It is common ground between the parties that a section 24 appeal is not limited to a review of the genuineness and/or reasonableness of the inspector’s opinion, but requires the tribunal to form its own view of the facts, paying due regard to the inspector’s expertise. It is also common ground that the tribunal should be focusing on the risk existing at the time when the notice was served.”[30]As Lady Black made clear at paragraph 18, the Tribunal’s task is to ascertain in relation to a prohibition notice, what the risk in fact was: “18. When the inspector serves the notice, section 22 makes clear that what matters is that he is of the opinion that the activities in question involve a risk of serious personal injury. If he is of that opinion, the notice comes into existence. However, as it seems to me, when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion but against the notice itself, as the heading of section 24 indicates. Everyone agrees that it involves the tribunal looking at the facts on which the notice was based. In doing so, it may well have available to it more evidence than was available to the Inspector at the time when the Notice was served.”[31]The Notice in Chevron was a Prohibition Notice. In an appeal against an Improvement Notice, the test for the Tribunal is whether the appellant was in fact in breach of the provisions set out in the Improvement Notice at the time the Notice was issued. In this case the provisions were sections 2(1) and 3(1) of the Health and Safety at Work Act 1974 and Regulation 6(2) of the PUWER Regulations 1998. As Mr Bergin pointed out, the Tribunal did indeed conclude in its Judgment that: “at the point when she reached her opinion that the appellant was contravening the statutory provisions, the respondent did not have an accurate picture of the facts about the duty holder’s activities, the hazards and the control measures in place to manage them.” However, as Mrs Dickson submitted by reference to paragraph 33 of the Judgment, the respondent’s opinion was partly, rather than wholly based on a misunderstanding of the facts and processes. We considered that that is a long way from a conclusion that ‘any attempt to resist the appeal was bound to fail’.[32]Mrs Dickson submitted that the Tribunal had heard considerable evidence about the systems the appellant had in place for inspecting ropes and identifying risk. She suggested that considerable explanation had been required as to how those systems operated because it was not immediately clear how the appellant’s systems worked. They were open to interpretation. We did not accept that submission in its entirety. We found that the appellant’s method statement was clear and detailed. However, we agreed with Mrs Dickson that much had turned on the interpretation of the evidence in relation to inspecting ropes and identifying risk. It is fair to say that the appellant’s systems had involved the examination of more than one document and that although instruction was given in the relevant method statement to ensure that the rope was in good condition; and although drivers were also instructed on induction to check the condition of ropes before using them in re-sheeting, no specific instructions had been given on how to inspect ropes, though that might be thought obvious.[33]With regard to the respondent’s lack of experience of road haulage, it was mentioned in the context of Railtrack v Smallwood in paragraph 43 of the Judgment to the effect that the respondent’s expertise was general rather than specific to haulage. It was not, as Mrs Dickson submits, a criticism.[34]It is also fair to say that more evidence was available to the Tribunal than had been placed before the Inspector or given to her prior to her lodging her response. For example, at the hearing which began on 10 December 2019, the Tribunal had the benefit of an affidavit dated 6 December 2019 from Mr Henderson.[35]In conclusion, we accept Mrs Dickson’s submission that establishing the facts required interpretation of the evidence and that the evidence in relation to risk assessment for the purposes of section 2(1) of the 1974 Act and inspection for the purposes of PUWER 6(2) could have been interpreted differently. We agree with Mrs Dickson that it is incorrect to say that the appeal response had no reasonable prospect of success. The prospects were dependent upon the Tribunal’s interpretation of the evidence. We conclude that the threshold test of the response having no reasonable prospect of success has not been met and the application is accordingly refused.