Tribunal decision

The Test of reasonableness

1. Where the reasonableness of the inspector's decision has been challenged the test to be applied by the Tribunal is whether the decision was so irrational that it cannot be supported. This test is sometimes referred to as the "Wednesbury" reasonableness test ^1. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. ² - The Tribunal will therefore consider whether you allowed irrelevant matters to influence your decision or whether relevant matters were excluded, see reference in Notices Section.

What the Tribunal can do

2. The Tribunal may either cancel or affirm the Notice ³.If it affirms the Notice it may do so either in its original form or with such modifications as the Tribunal may, in the circumstances, think fit. In essence any technical difficulty with the Notice should lead to an amendment so that the Notice can be supported, unless the opinion of the inspector on the essential matters which gave rise to the Notice was so unreasonable as to be insupportable. ⁴
3. Where the Notice has been suspended until after the appeal is determined, the date for completion may have passed by that time. If it is then not possible for work to be completed in time the Tribunal will consider modifying the date and the inspector will need to inform the Tribunal of his opinion in relation to the risk.

Costs

4. In respect of costs, the Tribunal may order one party to pay the other party:
   • A specified sum up to £10,000; or
   • A sum agreed by the parties; or
   • An amount to be assessed by the County Court ⁵
   Normally an award of costs should be made to the successful party. This power is wider than the power to award costs in other matters which come before Tribunals and, if the Notice is upheld, you should remind the Tribunal of this.
5. You should have a calculation of your costs before going into the Tribunal hearing and be able to hand this to the Appellant and the Tribunal at the end of the case. If the costs cannot be agreed between the parties, the Tribunal may make an order for costs to be paid or for a detailed assessment by a County Court Costs Judge. If you require advice on this issue you should contact Legal Adviser’s Office (via your legal liaison point).
6. In the situation where an appeal is withdrawn without a tribunal hearing, then HSE would normally seek to have any costs incurred for the purposes of the appeal paid by the dutyholder. If this arises then you should refer the matter through your line management to your legal liaison point.

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Footnotes

1. Associated Provincial Picture Houses v - Wednesbury Corporation [1948] 1 KB 223.
2. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410.
3. S24(2) HSWA
4. Chrysler United Kingdom Ltd - v - McCarthy [1997] I.C.R 939 However, in BT Fleet Ltd v McKenna [2005] EWHC 387 (Admin), the Administrative Court stated that Employment Tribunals cannot affirm a notice which is invalid and that a notice can only require what is necessary to comply with the breach cited on the face of the notice. The Administrative Court did not apply the case of Chrysler and therefore did not consider the extent to which a Tribunal can modify a notice that is unclear rather than invalid.
5. Rule 10 Employment Tribunals (Health and Safety – Appeals Against Improvement and Prohibition Notices) Rules of Procedure 2004