BT Fleet Ltd v McKenna [2005] EWHC 387 (Admin)

[2005] EWHC 387 (Admin)Case No CO/5277/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 March 2005
Before
THE HON. MR. JUSTICE EVANS-LOMBE
Between
BT FLEET LIMITEDAppellantJASON STEPHEN JOSEPH McKENNARespondent
Jonathan Hall (instructed by BT Fleet Ltd) for AppellantMark Harris (instructed by Berwin Leighton Paisner) for RespondentHearing Hearing date: 25/2/2005
JudgmentThe Hon. Mr. Justice Evans-Lombe :
[1]This is an appeal under section 11 of the Tribunals and Inquiries Act 2004 by BT Fleet Limited (“BT”) against the decision of the London East Employment Tribunal of the 29th July 2004 affirming a notice given under section 21 of the Health and Safety at Work Act 1974 by the respondent (“Mr McKenna”) an inspector of Health and Safety. It is BT’s contention that the notice in question was invalid and should have been cancelled by the Tribunal because it did not comply with the provisions of section 21 of the 1974 Act.[2]Section 2 of the 1974 Act provides as follows:- “General duties 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(2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b)… (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;…” (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b)… (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;…”[3]Section 21 of the 1974 Act provides:- “Improvement notices. 21. 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.” (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.”[4]Section 23 provides:- “Provisions supplementary to sections 21 …(1) In this section “a notice” means an improvement notice…(2) A notice may (but need not) include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates;”[5]Section 24 of the Act provides:- “24(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 industrial tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may be so either in its original form or with such modifications as the tribunal may in the circumstances think fit.”[6]Regulation 4 of the Manual Handling Operations Regulations 1992 provides:- “Duties of employers 4.(1) Each employer shall—(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured— (i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified… (ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable…” (a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or (b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured— (i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified… (ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable…”[7]An account of the background facts of the case as found by the Tribunal, and which are not substantially in dispute, is set out at paragraph 4 of the grounds of appeal as follows:- “i. On 7th January 2004 a rare accident occurred at BT Fleet workshop in which an employee of BT Fleet was injured whilst lifting a transit tyre onto a tyre changing machine. ii. On 6th Feb 2004 Mr. McKenna, on an unannounced visit to the site, concluded that not only the individual employee but also his supervisor were dealing with tyres using a poor lifting procedure. iii. He learnt that Mr. Howard had last been trained on lifting procedures in 2000, and had never been monitored carrying out the manual handling of wheels and tyres onto the tyre changing machine. iv. Mr. McKenna had initially decided to issue BT Fleet Ltd with a formal letter rather than an enforcement notice. However, on 26th April in a phone conversation Mr. McKenna told Mr. Hoadley of BT Fleet that BT Fleet should consider whether or not it would be appropriate to use lifting aids at the Dagenham site. Mr. Hoadley’s attitude was indifferent and abrupt and led Mr. McKenna to conclude that if he sent a letter no further action would be taken. v. On 17th May an Improvement notice was issued giving notice that the Applicant had contravened, “section 2(1) Health and Safety at Work etc Act 1974 and Regulation 4(1)(a) of the Manual Handling Operations Regulations 1992 as amended”. The notice contained Mr. McKenna's reasons which were that BT Fleet had:
“failed so far as is reasonably practicable to avoid the need for [its] employees to undertake a manual handling operation, namely the manual lifting of wheels and tyres on to the Balco Titan T3000 tyre changing machine which involves a risk of their being injured.”
In a schedule it was stated that in order to comply with the notice BT Fleet should:
“1. Provide mechanical aids for use when lifting tyres and wheels on to the Balco Titan T3000 tyre changing machine to avoid manual handling which has a risk of injury. OR 2. Any other equally effective means of complying with the notice may be used.” vi. The Tribunal found that when Mr. McKenna referred to section2(1) of the 1974 Act he had in mind a breach as described in section 2(2)(a) of the Act. vii. Following the lodging of an appeal the HSE visited the site on 13th July and concluded that BT had complied with option 2 in the Schedule of the improvement notice. 5 The Tribunal’s conclusions were (a) that it was reasonable for Mr. McKenna to conclude following his first visit that inadequate procedure was being followed and that there was inadequate supervision of employees conducting lifting. The Tribunal noted that although BT has good provisions in its manual and elsewhere regarding manual lifting such procedures are only as good as those who are monitoring them; (b) that Mr. McKenna was genuinely of the opinion that BT Fleet Ltd was contravening section2(1) of the 1974 Act and Regulation 4(1)(a) of the Regulations (c) that it was reasonable for Mr. McKenna “to have formed this decision” after BT Fleet indicated that there were no practical measures they would take; (d) that the notice met all the requirements of s.21 of the 1974 Act; and that s.2(1) of the 1974 Act adequately set out the governing “umbrella” principles of an employer’s duty…. (e) that the reasons given by Mr. McKenna in the notice supporting his opinion “clearly set out the problem which he believed needed to be tackled, and the absence of any further detail as to how Section 2(1) of the 1974 Act was breached should not have presented [BT Fleet Ltd] with any difficulty”; (f) that it was accepted by HSE that the direction that BT Fleet provide suitable mechanical lifting aids as an alternative to manual handling was not reasonable; however, the phrase “any other equally effective measures" would include ensuring that BT Fleet's written procedure on manual handling were properly followed and monitored; (g) that although HSE was not obliged to set out directions as to measures to remedy the breaches, the HSE “could have been more specific in acknowledging that a sufficient remedy might be the implementation of proper training and supervision procedures” 6. The Tribunal declined to award costs against BT Fleet, “particularly as there was a certain lack of clarity in the schedule of the Improvement notice.”.”
The notice contained Mr. McKenna's reasons which were that BT Fleet had:
“failed so far as is reasonably practicable to avoid the need for [its] employees to undertake a manual handling operation, namely the manual lifting of wheels and tyres on to the Balco Titan T3000 tyre changing machine which involves a risk of their being injured.”
In a schedule it was stated that in order to comply with the notice BT Fleet should: vi. The Tribunal found that when Mr. McKenna referred to section2(1) of the 1974 Act he had in mind a breach as described in section 2(2)(a) of the Act. vii. Following the lodging of an appeal the HSE visited the site on 13th July and concluded that BT had complied with option 2 in the Schedule of the improvement notice. (a) that it was reasonable for Mr. McKenna to conclude following his first visit that inadequate procedure was being followed and that there was inadequate supervision of employees conducting lifting. The Tribunal noted that although BT has good provisions in its manual and elsewhere regarding manual lifting such procedures are only as good as those who are monitoring them; (b) that Mr. McKenna was genuinely of the opinion that BT Fleet Ltd was contravening section2(1) of the 1974 Act and Regulation 4(1)(a) of the Regulations (c) that it was reasonable for Mr. McKenna “to have formed this decision” after BT Fleet indicated that there were no practical measures they would take; (d) that the notice met all the requirements of s.21 of the 1974 Act; and that s.2(1) of the 1974 Act adequately set out the governing “umbrella” principles of an employer’s duty…. (e) that the reasons given by Mr. McKenna in the notice supporting his opinion “clearly set out the problem which he believed needed to be tackled, and the absence of any further detail as to how Section 2(1) of the 1974 Act was breached should not have presented [BT Fleet Ltd] with any difficulty”; (f) that it was accepted by HSE that the direction that BT Fleet provide suitable mechanical lifting aids as an alternative to manual handling was not reasonable; however, the phrase “any other equally effective measures" would include ensuring that BT Fleet's written procedure on manual handling were properly followed and monitored; (g) that although HSE was not obliged to set out directions as to measures to remedy the breaches, the HSE “could have been more specific in acknowledging that a sufficient remedy might be the implementation of proper training and supervision procedures”[8]The summary of the Tribunal’s findings omits the following relevant matters.(i) The Improvement notice under the heading “date for compliance” contained the following direction:- “I hereby require you to remedy the said contraventions or, as the case may be, the matters occasioning them, by 17th July 2004 And I direct that the measures specified in the Schedule which forms part of this notice shall be taken to remedy the said contraventions or matters.”(ii) On the following page of the notice the Schedule contains the words above paragraphs 1 and 2 “in order to comply with this notice you should:”(iii) In notes attached to the notice there appear the following words:- “1 Failure to comply with this Improvement notice is an offence as provided by section 33 (1) (d) of the Health and Safety at Work etc Act 1974 and section 33(2A) of this Act renders the offender liable on summary conviction to imprisonment for a term not exceeding six months, or to fine not exceeding £20,000, or both, or, on conviction on indictment to imprisonment for a term not exceeding two years, or a fine, or both.”(iv) The Tribunal in the course of the hearing modified the notice by adding at the end of paragraph 2 of the Schedules the words “such as ensuring that adequate training and supervision is in place”.[9]It will be seen from the summary of the facts that there are no remaining issues between BT and HSE. However BT retains an interest in challenging the Tribunal’s findings in particular that set out at (e) (f) and (g) above. This is because the fact that BT have been served with an Improvement notice by an inspector of HSE will be found on HSE’s website. BT’s primary business is servicing British Telecom vehicles but it does contract to provide services to outside commercial organisations. In bidding for any contract exceeding £50,000 it would be bound to disclose that it had been served with an Improvement notice in respect of its operations.[10]Accompanying the Enforcement notice was a letter of the same date from Mr McKenna to BT’s National Safety and Environment Manager. That letter reads:- “ACCIDENT INVESTIGATION - MR ETHUN HOWARD Health and Safety at Work, etc Act 1974, Sections 2(1), and Manual Handling Operations Regulations 1992 as amended, Regulations 4(1)(a) and 4(1)(b)(i) My investigation into the accident that resulted in Mr Ethun Howard injuring his back as he attempted to lift a tyre onto the Balco Titan T3000 tyre changing machine, concludes that the accident could have been avoided if manual, handling operations involving a risk to injury within the Dagenham TSVC had been adequately avoided and/or assessed. The immediate cause of the injury to, Mr Ethun Howard would appear to be the trunk twisting side bending motion employed by Mr Howard as he attempted to lift the tyre onto the [the machine] and this was identified by Mr Peter Hoadley's subsequent accident investigation. The underlying cause as to why this trunk twisting side bending motion was employed was not identified in Mr Hoadley's subsequent accident investigation report From discussion with Mr Howard and Mr Len Hayward, the Supervisor at the Dagenham TSVC, and site inspection it would appear that as wheels and tyres are very easy to roll, when they need to be transferred from the bottom level of the racking where the Goodyear 195R 14 Cargo G28 transit tyres are stored, and from other locations, they are generally rolled alongside as the employee walks rather than picked up and carried. [The machine] is designed so that the operator is stood directly in front of the machine. Therefore when an employee rolls the wheel/tyre up to[ the machine] they will generally position themselves directly in front of the machine, with the tyre at their side, thus creating the potential for the trunk twisting side bending lift of the tyre from the floor beside them onto the [the machine] in front of them. The Manual Handling Operations Regulations 1992 (as amended) requires employers, so far as is reasonably practicable, to avoid the need for their employees to undertake any manual handling operations at work which involve a risk of their being injured. Having identified on your generic risk assessment for Tyre Changing that there was a risk of injury from manual handling activities you are required to avoid the need for your employees to carry out those manual handling activities where it is reasonably practicable. The hierarchy of control measures requires you to consider elimination, of the manual handling process first, and if this was notreasonably practicable then consider automation or the use of mechanical, lifting aids. Possible solutions could include either providing a ramp alongside the [the machine] so that the wheel or tyre could be rolled up the ramp and then dropped/lowered onto the tyre changing machine rather than lifted from the floor, or a lifting table or hoist could be provided next to the [the machine] or even a trolley with an automatically adjustable table height, which could also be used for transporting the tyres instead of rolling them. My investigation also highlighted a contributing factor as to why the risk from injury from lifting tyres and wheels onto [the machine] had not been adequately identified,, which was that the manual handling process of lifting the wheels and tyres had not been adequately assessed. I was informed by Mr Hoadley that other than the previously mentioned generic risk assessment titled Tyre Changing which identified Manual Handling as having a risk rating of 12 out of a possible 49, with no further action required, there were no “local” risk assessments covering the changing of tyres using [the machine] even though the generic risk assessment referred to Manager’s “local risk” assessments. Also the document titled … Manual Handling, states that if you cannot avoid moving a load by hand, a risk assessment must be carried out so that a way of doing the task safely can be worked out. Again I was informed by Mr Hoadley that there was no such assessment for the lifting of tyres onto a [the machine] or any other tyre changing machine, other than the generic risk assessment titled Tyre Changing. The Manual Handling Operations Regulations 1992 (as amended), require employers, where it is not reasonably practicable to avoid the need for their employees to undertake manual handling operations which involve a risk of their being injured, to make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them. The generic Tyre Changing risk assessment would not be considered a suitable and sufficient assessment of the risks involved in the lifting of tyres and wheels onto [the machine] as it does not consider that task, the load, the working environment and other factors, for example it has not identified that the trunk twisting side bending lifting action would be likely to be employed given the likely locations of the individual and the tyre at the start of the lift. ACTION You should, so far as is reasonably practicable, provide suitable mechanical lifting aids for use when lifting tyres-and wheels onto [the machine], or take an other equally effective action to avoid manual handling which has a risk of injury. I enclose an Improvement notice, serial number 002900, which must be complied with by 17 July 2004. You should note that HSE does not grant extensions for complying with Improvement notices unless there are exceptional circumstances. If you are unable to comply with the notice by the above date then you should inform me of the reasons in writing as soon as possible. The failure to comply with an improvement notice within the time specified in it is an offence under Section 33(1) of the Health and Safety at Work Etc Act 1974, with a maximum fine on conviction in a magistrates’ court of up to £20,000 or an unlimited fine on indictment. Your attention is drawn to the notes on the reverse of the notice that explains your rights of appeal against the notice to an employment tribunal. I enclose an appeal form that you may use if you wish. You should also review all other manual handling operations carried out by employees at the Dagenham TSVC that involve a risk of their being injured and, so far as is reasonably practicable, arrange work activities so that all such manual handling activities are avoided, or where this is not reasonably practicable ensure that a suitable and sufficient assessment of all such manual handling activities is carried out…”

ACTION

[11]It is common ground that the notice and the letter of the 17th May 2004 are to be read together and the letter may be taken as qualifying the notice.[12]I was referred by counsel for BT to the decision of the Divisional Court in The Borough of Bexley v Gardner Merchant Plcunreported 17th March 1993. In that case the court was considering a challenge to an Improvement notice given under the Food Safety Act 1990. The relevant provisions of that Act are contained in section 10 set out in the report. That section reads:- “10.(1) If an authorised officer of an enforcement authority has reasonable grounds for believing that the proprietor of a food business is failing to comply with any regulations to which this section applies, he may, by a notice served on that proprietor (in this Act referred to as an “improvement notice”) a) state the officer's grounds for believing that the proprietor is failing to comply with the regulations; (b) specify the matters which constitute the proprietor's failure so to comply; (c) specify the measures which, in the officer's opinion, the proprietor must take in order to secure compliance; and (d) require the proprietor to take those measures, or measures which are at least equivalent to them, within such period (not being less than 14 days) as may be specified in the notice. (2) Any person who fails to comply with an improvement notice shall be guilty of an offence.” a) state the officer's grounds for believing that the proprietor is failing to comply with the regulations; (b) specify the matters which constitute the proprietor's failure so to comply; (c) specify the measures which, in the officer's opinion, the proprietor must take in order to secure compliance; and (d) require the proprietor to take those measures, or measures which are at least equivalent to them, within such period (not being less than 14 days) as may be specified in the notice.[13]The complaint under which the proceedings were brought by the local authority against the appellant company was that they failed to supply appropriate wash hand basins for staff near working areas. In fact a number of notices were served each of which specified measures which should be taken. The appellants sought to impugn the notices on a series of grounds for non-compliance with the provisions of section 10. Section 39 of the 1990 Act contains provisions for appeal to the court and which empowered the court “to cancel or affirm the notice and, if it affirms it may do so either in its original form or with such modifications as the court may in the circumstance think fit”.[14]The judgment of the divisional court was delivered by Lord Justice Evans at the top of page 5 of the transcript having referred to a series of decisions of the court on Enforcement notices under planning regulations he continues:- “Accepting that guidance from the authority, it may be observed that the overall effect, in particular of Lord Denning’s statement of the correct approach, differs very little from the wording of paragraph 22 of the Codes of Practice. Whether one applies that paragraph of the Co de as a statutory requirement which in the circumstances one is probably bound to do or whether one applies the common law approach as described by Lord Denning the question is this: does the notice enable the recipient to know what is wrong and why it is wrong? The requirement is that the notice should be clear and easily understood.”[15]Later in the judgment dealing with the question of amendment of the notice by the justices Lord Justice Evans says:- “The first question, therefore, is whether the notice is one that should stand or not and, in a case such as the present where, as in my judgment, the notice is not in accordance with the statute, it follows that it is a case for cancellation, and unless the notice is affirmed no question of modifying or amending it can arise. It is possible to easily envisage cases where notices might be varied and affirmed but where the magistrates after hearing the appeal and no doubt hearing evidence, might differ from the authority as to what requirements the notice should contain…. Suffice it to say for present purposes that in my judgment there is no basis in law that the authority can ask for the notices to be modified or amended so as to lead to their being upheld rather than declared invalid….”[16]It was submitted on behalf of Mr McKenna that the divisional court in the Bexley case was considering notices given under legislation sufficiently different from that in the present case so that the approach of the court in that case should not be followed in the present case. I can see no reason why that should be so. The only material difference in the notice requirements between section 10 of the Food Safety Act 1990 and section 21 of the 1974 Act was the requirement, in section 10 at sub section (c), that the measures to secure compliance should be specified whereas section 23 (2) of the 1974 Act makes the inclusion of directions as to such measures optional. I can see no reason why the requirement that “the notice enable the recipient to know what is wrong and why it is wrong” and that the notice “should be clear and easily understood” should not apply equally to notices under the 1974 Act as the divisional court held it applied to notices under the 1990 Act.[17]In my judgment any reasonable employer reading the notice in this case together with the letter of the 17th May 2004 would construe it as requiring him to cease manual handling of wheels onto the tyre changing machine and to substitute some sort of mechanical handling device to take its place. The notice specifies a breach of regulation 4(1)(a) which requires an employer “so far as is reasonably practicable to avoid the need for his employees to undertake any manual handling operation at work which involves a risk of their being injured;” in contradistinction to paragraph (b) which specifies how work should be organised in the event that it is not reasonably practicable to avoid manual handling. Paragraph 2 of the schedule as un-amended simply requires “any other equally effective means of complying with the notice” to be substituted for the specific mechanical means specified in paragraph 1. That Mr McKenna was willing to contemplate, as an alternative remedy, staff training on how manual handling of the wheels should be undertaken cannot, in my view, be read into sub paragraph 2 of the schedule or the terms of the letter of the 17th May. It is however sufficient to say that to any recipient of the notice and the letter it would certainly not clearly emerge that such a method of compliance was acceptable. The Tribunal appeared to have realized this by the way in which they required paragraph 2 of the schedule to be amended. In the Bexley case Lord Justice Evans said that it was a fatal defect that the notice was not specific as to the particular failure on which the authority relied.[18]It was submitted for Mr McKenna that the defects in the schedule to the notice should not prove fatal to it because the statute did not make it compulsory for the notice to contain “directions as to the measures to be taken to remedy any contravention”. See section 23 (2). I am unable to accept that submission. It seems to me that if the provisions of the relevant statute provide an option to proscribe how the recipient can comply with the notice, and that option is taken, then the specification of how compliance can be effected form part of the notice and, if confusing, may operate to make it an invalid notice.[19]In my judgment once it became apparent to the Tribunal that the HSE through Mr McKenna was not insisting on a mechanical solution to the problem of lifting wheels onto the tyre changing machine the Tribunal should have realised that the notice was fatally flawed and should not have attempted to put matters right by amendment.[20]It was submitted to me on behalf of Mr McKenna that latitude should be given to such organisations as the HSE and their inspectors in the drafting of notices such as those in question in these proceedings, because not to do so, and impose on them over strict drafting requirements, would undermine the effectiveness of the inspectorate in ensuring the safety of the workplace. There is certainly support for that submission in authority. It is set out in the judgment of the divisional court in the Bexleycase. Thus Lord Justice Evans draws attention to the judgment of Mr Justice Upjohn in Miller Mead v Minister of Housing and Local Government 1963 2QB 196 where he says:- “The function of the court is not to introduce strict rules not justified by the words of the section… the test must be: does the notice tell him fairly what he has done wrong and what he must do to remedy it?.”[21]And also to the judgment of Lord Denning in Ormston v Horsham Rural District Council 66LGR 452 where he says:- “An Enforcement notice is not to be regarded with the strict eye of a conveyancer. An inaccuracy or mis-description does not make it a nullity…so long as an Enforcement notice tells a man fairly what he has done wrong and what he is required to do to put it right, then the notice is good.”[22]In my judgment the notice in the present case told BT that requiring its workers to lift wheels onto a tyre changing machine manually was a breach of section 2(1) of the 1974 Act and the only way to reorganise working so as to avoid the risk of injury consequent on such manual handling was by the installation of machines to undertake it. It was not suggested that that was what Mr McKenna, at any stage, intended to be the effect of the notice or, alternatively, if that was his intention when the notice was issued it soon became apparent to him that it was misplaced. Once that is understood it follows that this notice did not properly enable the recipient to know what was wrong, why it was wrong and how the giver of the notice intended that what was wrong should be put right.[23]For these reasons, in my judgment, this appeal must be allowed, the order of the Tribunal affirming the notice must be quashed and there be substituted an order cancelling it.

Cited in 3 later judgments