Oil Rig Health and Safety Dispute Triggers Supreme Court Test Case

28/02/2018


Health and safety inspectors do a difficult job under pressure and concerns that they express do not always, on further analysis, turn out to be warranted. In an important decision, the Supreme Court ruled that the operator of a North Sea oil rig was entitled to present expert evidence that an inspector was wrong to find that the safety of its employees had been put at risk.

The inspector had issued a prohibition notice against the operator after forming the view that corrosion had rendered the stairways and stagings of the rig’s helicopter deck unsafe. The operator subsequently had the relevant metalwork removed and tested. All the metalwork passed the British standard strength test, with the exception of one piece that had been damaged during the inspection and could not be reliably tested.

In reliance on those test results, the operator argued that there had in fact been no risk of its personnel falling through the metalwork and appealed to an Employment Tribunal (ET). In cancelling the notice, the ET concluded that, on the date that the notice was served, there had been no risk of serious personal injury.

In challenging that ruling, the inspector argued that the ET should have confined itself to considering the material that was, or could reasonably have been, known to him on the date that the notice was served. The ET had thus erred in law in taking into account the subsequent test results.

In ruling on the inspector’s appeal, the Court noted the importance of inspectors being able to take prompt and effective action to ensure compliance with the Health and Safety at Work etc Act 1974. They often had to take action urgently and without the luxury of comprehensive information. In this particular case, it was no criticism of the inspector that the subsequent tests had led to a different conclusion about risk than the one that he had reached.

In dismissing his appeal, however, the Court noted that the operator’s challenge had not been to the inspector’s opinions, but to the notice itself. The ET was entitled to consider the reality of the situation and to look beyond the material that was, or should have been, available to the inspector.

Noting the reputational damage that such notices can cause to employers, and the threat of criminal prosecution in the event of non-compliance, the Court found that its conclusion would not undermine the objectives of the Act. If the inspector’s arguments were correct, a notice could not be dislodged on appeal, even if the perceived risk of injury had never in fact existed.

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