An employee of BT Fleet Ltd had been injured in the company workshop while lifting a tyre onto a tyre-changing machine. A health and safety inspector named Mr McKenna visited the site and issued an improvement notice under section 21 of the Health and Safety at Work Act 1974. The notice stated that the company had contravened s 2(1) of the Health and Safety at Work Act 1974 and Regulation 4(1)(a) of the Manual Handling Operations Regulations 1992.
The improvement notice stated that the manual lifting procedure in BT Fleet’s workshop presented a risk of injury to its workers. A schedule attached to the notice provided that in order to comply with the notice BT Fleet should either provide mechanical aids for use when lifting tyres and wheels on to the machine, or “any other equally effective means” of complying with the notice.
BT Fleet appealed the improvement notice to the London East Employment Tribunal. It was conceded by the HSE (through Mr McKenna) at the tribunal that the direction to provide mechanical lifting aids to lift the tyres was not reasonable. The tribunal held that the phrase "any other equally effective means" included the implementation of proper training and supervision procedures by BT Fleet. The tribunal affirmed the notice and amended it by adding that the implementation of proper training and supervision procedures was an acceptable method of compliance with the legislation.
BT Fleet appealed against the decision on the grounds that the improvement notice was invalid as it did not comply with the provisions of section 21 of the 1974 Act. Under section 21 of the act inspectors must specify in improvement notices the legal requirements that they think are being broken and also give reasons for this opinion. In addition inspectors must specify how matters should be put right within a stated time frame.
The central issue in these proceedings was whether the notice ought to have been cancelled on the basis that it was not sufficiently clear so as to enable BT Fleet to know what was wrong and how to put it right. The HSE argued that the defects in the notice were not fatal as s.23(2) of the 1974 Act did not make it compulsory for the notice to contain directions as to the measures to be taken to remedy any contravention.
Reference
The court stated that improvement notices issued under the Health and Safety Act 1974 must enable the recipient to know what was wrong, why it was wrong and how the notice intended that what was wrong should be put right.
Where, as in the present case, a statute provided an option to proscribe how a recipient could comply with a notice and that option was taken, then the specification of how compliance could be achieved formed part of the notice. A confusing or unclear specification could operate to make the notice invalid.
In the instant case, it was not clear from the phrase "any other equally effective means" in the notice that the HSE was willing to contemplate, as an alternative remedy, staff training on how manual lifting should be undertaken.
Once it became apparent to the tribunal that the HSE was not insisting on mechanical lifting aids, it should have concluded that the notice was invalid and should not have tried to amend it. The appeal was allowed and the tribunal’s order affirming the notice would be quashed and an order cancelling the notice substituted in its place.
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk.
Postscript
Recipients of improvement notices issued under the Health and Safety legislation are entitled to know what was wrong and why it was wrong, and how the notice intended that what was wrong should be put right. In addition the notice has to be clear and easy for the recipient to understand. If the improvement notice is unclear it may be open to the recipient to challenge the notice on the grounds of invalidity.
