Appealing against a Notice
Notes regarding an appeal are printed on the rear of the Improvement or Prohibition Notice which you received. If you are unhappy with the contents of the Notice, for example you may feel that the circumstances outlined in the Notice are inaccurate or that the remedy can be achieved in other ways, then the law permits you to lodge an appeal within 21 days of receiving it.
To do this you must complete the form "Appeal under the Health and Safety at Work, etc., Act, 1974" which should have accompanied the Notice.
The form needs to be sent to the regional office of the Employment Tribunals Service who then arrange a tribunal to hear your appeal.
What is an employment tribunal?
Employment tribunals are independent judicial bodies. It is their job to hear evidence from both the person receiving the Notice and the inspector who issued the Notice with the object of deciding:
- If the conditions described by the inspector in the Notice are accurate and the Notice is justified
- Whether the action required to remedy the matters described in the Notice is fair and reasonable.
Who sits on the tribunal?
The tribunal will always include a legally qualified Chairman. He or she will be a solicitor or barrister of several years standing, who has been appointed in England by the Lord Chancellor, and in Scotland by the Lord President of the Court of Session. The tribunal will also normally include two lay members, one drawn from a panel of employer's representatives and the other from a panel of employee representatives. The lay members are appointed by the Secretary of State for Trade and Industry.
Making your appeal to the tribunal
When you lodge your appeal the form contains details of the grounds on which you are appealing - what it is about the Notice to which you object.
Once the tribunal receives your form a copy will be sent to the inspector against whose notice you are appealing.
Is the Notice suspended if I appeal?
This depends on the type of Notice. In the case of an Improvement Notice the Notice is suspended until after the tribunal hearing. However, in the case of a Prohibition Notice the Notice is not suspended. The reason for this is that the issue of Prohibition Notice results from conditions that pose a serious risk to health or safety and to suspend the Notice could condone dangerous conditions. You may, however, make an application for a Prohibition Notice to be suspended provided that:
- It is done in writing
- It contains the case number of your appeal (if known) or provides sufficient information for it to be identified and it contains details of the grounds on which you are applying for the suspension.
You may send your request for suspension of a Prohibition Notice together with your Notice of Appeal.
What if I change my mind and wish to withdraw my appeal?
You may withdraw your appeal at any time by writing to the tribunal and informing them of your decision. You should quote the case number of your appeal (if known) or provide sufficient information for it to be identified.
If you decide not to proceed but fail to notify the tribunal in writing the case will proceed in the normal way.
How much notice will I get of the hearing?
You will be given at least 14 days notice of the date, time and place of the hearing unless both parties agree to a shorter period.
Is the hearing in public?
The hearing will normally be in public but the tribunal has the power to direct that the hearing is held in private in certain special circumstances.
Is the hearing very formal?
The procedure is orderly but the atmosphere is informal and, if necessary, the tribunal will assist you during the presentation of your case. If you wish you may also send written representations to the tribunal in advance of the hearing, setting out the facts and the arguments on which you intend to rely.
Do I have to attend?
You do not have to attend if you do not wish to do so. You may simply rely on any written evidence which you have provided for the tribunal. Not appearing, however, does restrict your opportunity to challenge any evidence given by the inspector on the day and prevents the tribunal from asking you any questions which may clarify matters. Whilst every consideration will be given to written evidence, personal testimony is likely to carry more weight.
At the hearing your case may be put personally or by any person whom you wish to represent you - they do not need to be legally qualified. If you are not present or represented the tribunal will decide the case in your absence after considering any written evidence which you may have submitted.
Can I produce witnesses to support my case?
Where you are in dispute about matters of fact and there are other persons who have personal knowledge of these facts, you may arrange for them to attend as witnesses to support your case. They may be called to give evidence on oath or affirmation.
Can I make witnesses attend?
If you ask someone to appear and they refuse, you can write to the tribunal asking for an order requiring him or her to attend. If the tribunal grants you a witness order it may either send the order to you to serve on the witness or, alternatively, the tribunal may serve the witness order for you.
What about evidence?
You may produce any evidence you wish - statements, photographs, drawings, procedures, etc. in support of your case. You may also ask the inspector to bring any relevant documents to the hearing. If they refuse you can apply to the tribunal for an order to make them produce the documents. You may also, if necessary, ask the tribunal to order that:
- The other party should furnish further particulars (which must be specified) about the
case
- Documents in the possession of the other party should be produced for your inspection.
How will I be informed of the tribunal's decision?
In every case the tribunal will send you a document setting out their decision and the reasons for that decision. The tribunal's decision will either be:
- Dismiss your appeal and agree with the inspector
- Grant your appeal and cancel the Notice
- Amend the conditions of the Notice.
Can I appeal against a tribunal's decision?
You can appeal to the High Court on a point of law. When you receive a copy of the decision you will also be sent information about your right of appeal. Any appeal must be within 42 days of receipt of the tribunal's decision. The tribunal may also, in limited circumstances, review its decision.
What about costs and compensation?
The tribunal may make an order awarding appeal costs to either party.
If your appeal is against a Prohibition Notice and is upheld, and you feel that you or your business has suffered financial loss as a result of the Notice, you may be able to seek compensation through the civil court.
Data Protection Act 1984
Information provided to the employment tribunals about the application may be placed on computer to help with the work that has to be done on a case and for statistics to be produced. If you would like a copy of this information write to the Data Protection Officer.
There may be a small charge for such a request.
These notes are only intended as a brief guide to health and safety matters and may not cover all aspects in detail. If you require more specific advice please contact us.