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Appeals against Prohibition Notices – what is the impact of the recent decision in Shiva Ltd v Boyd?

08 March 2021
An Employment Tribunal has been deemed correct by the Appellate Court to have refused applications to stay two prohibition notices that were issued under s.22 Health and Safety at Work Etc Act 1974 on the basis that there was not a real risk of substantial prejudice. 

Summary

This case concerned an appeal brought by Shiva Ltd ("Shiva") against the decision of Employment Judge Truscott QC to refuse a stay of the Notice Appeals pending the conclusion of the criminal investigation. 

The prohibition notices related to Shiva's refurbishment work at its building in London and were issued on the basis that their activities involved a risk of serious personal injury. Shiva appealed to the Employment Tribunal and the hearing was listed for February 2021. 

In August 2020, the Health and Safety Executive notified Shiva of its intention to issue criminal proceedings against it for failure to comply with the notices and with its duties under the Act. Shiva applied for a stay on the basis that the criminal proceedings arose from the same facts as were in issue in the appeals and that disclosure of its evidence would prejudice it in relation to the criminal proceedings. The Judge found that Shiva had not shown that there would be a real risk of substantial prejudice which might lead to injustice if the stay was refused.

Shiva submitted that the judge's refusal to stay the appeal was wrong in law, unfair and in breach of its fundamental rights not to incriminate itself, the right to silence and the right of an accused to know the case in criminal proceedings it had to meet before disclosing its defence.

Judgment

The Appellate Court found that the Employment Tribunal Judge had used the correct test. Unless a party could show substantial prejudice, there was no sufficient reason to justify the stay. Further, the public interest clearly favoured an appeal against a prohibition notice being determined before any criminal proceedings. The fact that a decision on an application for a stay engaged the case management powers of a tribunal did not of itself relieve the court of any responsibility to determine for itself what fairness required in the circumstances.

The Judge's conclusion that the right not to self-incriminate had a very limited or no role to play in the proceedings was impeccable. There was no suggestion that Shiva would be compelled on pain of punishment to provide any information or evidence.

Shiva was under no obligation to disclose its defence in the appeals, choosing to do so did not infringe its pre-trial right to silence, any rights it had in the criminal proceedings or put at risk a fair trial. 
There was no basis for the contention that refusing the stay substantially interfered with Shiva's rights to challenge the notices in the tribunal. The judge had recognised that the intended prosecutions might leave Shiva with a difficult choice about presenting its case in the tribunal but he was entitled to find, given the nature of the appeal, that it was not sufficient to create a real risk of substantial prejudice which might cause injustice to Shiva. There was no error of law. The appeal was dismissed. 

Commentary

It will be interesting to see how this authority is used by the HSE in future. In the past, staying notice appeals pending the outcome of the HSE's investigation has, in the majority of cases, been a given but this case may just give the HSE an inclination to push back on those agreements in order to pressure the Defendant to show its hand and test the veracity of the evidence. Of course, this can cut both ways and there may be some cases where we advise our clients to press for the hearing of the Appeal in order to put pressure on the HSE. This case will certainly assist those arguments.

What is clear from this authority is that the bar for what constitutes a real risk of substantial prejudice is very high.

If you have any questions, please get in touch with Simon Belfield or Ayaz Saboor.

Further Reading

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