2501756-2018 rjr (002) - assets.publishing.service.gov.uk · &dvh 1xpehu 5hvhuyhg mxgjphqw zlwk...

Case Number: 2501756/2018

10.5 Reserved judgment with reasons – rule 61 March 2017 1

EMPLOYMENT TRIBUNALS

Appellant: Engie Regeneration Limited

Respondent: Mr S R Whitesmith (one of HM Inspectors of Health and Safety)

Heard at: Sheffield On: 7 May 2019 (reading day)

8 and 9 May 2019

10 May 2019 (in chambers)

Before: Employment Judge Little

Miss S D Sharma

Mr K Smith

Representation

Appellant: Mr R Matthews QC (instructed by Clyde & Co LLP) Respondent: Mr I Wright of Counsel (instructed by VHS Fletchers

solicitors)

RESERVED JUDGMENT

The unanimous Judgment of the Tribunal is that the Prohibition Notice Serial Number 230818/SRW/001 served by the respondent on the appellant on 23 August 2018 is affirmed without modifications and so this appeal fails.

REASONS

1. This is an appeal by Engie Regeneration Limited (‘Engie’) pursuant to the Health and Safety at Work etc Act 1974 section 24. That provision permits a person on whom a Prohibition Notice has been served to appeal to this



Tribunal. On such an appeal the Tribunal may either cancel or affirm the notice and, if it affirms the notice, may do so either in its original form or with such modifications as the Tribunal may in the circumstances think fit.

2. The notice issued by the respondent described the relevant activities as:

“Any work within an excavation that is not adequately supported or made safe by being battered back at a safe angle”.

Further it was Mr Whitesmith’s opinion that the work in question was being carried on under the control of Engie. There was, Mr Whitesmith recorded, a risk of serious personal injury and the matters which gave rise to that risk were described as:

“persons working in the excavation are at risk of being struck, buried or trapped by any fall or dislodgement of any material”.

Those matters were stated to involve contravention of the Health and Safety at Work etc Act 1974 (‘the Act’) sections 2(1) and 3(1) and also the Construction (Design and Management) Regulations 2015 ( ‘the CDM 2015’) Regulations 13(1) and 22(1).

The reasons were given as:

“You have failed to plan, manage and monitor the construction works such that all reasonable practicable steps have not been taken to prevent danger from fall/dislodge of material (eg early provision of suitable and sufficient shoring installed by competent contractors under supervision). There is also a failure to ensure safe access/egress (no tied ladder etc). No engineer’s report on site”.

The notice contained a direction that the said activities should not be carried on by Engie or under Engie’s control unless the said contraventions and matters had been remedied.

The notice also records that a prohibition notice was also being served on Cidon Construction Limited (‘Cidon’) in respect of the same matters. The notice is dated and was issued on 23 August 2018

3. Engie brought this appeal by presenting a claim form to the Tribunal on 12 September 2018. Within the claim form grounds of appeal were set out, fairly briefly. Subsequently, by order of Employment Judge Johnson, Engie were given permission to serve an amended notice of appeal. It is that notice on which Engie now rely. Those grounds were settled by Mr Matthews who represents Engie at this appeal. The principal ground of appeal is set out as follows:

“On 23 August 2018, at the time that the prohibition notice was issued, there existed no risk of serious personal injury arising from any work within an excavation at Engie Construction Site, that was being carried out under the control of Engie Regeneration Limited, because no such work was being carried out under the control of Engie Regeneration Limited”.

The secondary ground of appeal was set out as:

“On 23 August 2018, at the time that the prohibition notice was issued, Engie Regeneration Limited, was not in breach of each of the statutory duties included in the Prohibition Notice”.



The grounds went on to concede that there had existed a risk of serious personal injury arising from the work within the excavation but it was contended that that work was under the control of others and not Engie.

It was accepted that Engie were the principal contractor. That is a term of art within CDM 2015. Within Regulation 2, the definitions regulation “principal contractor” means

“the contractor appointed under Regulation 5(1)(b) to perform specified duties in Regulations 12 to 14.”

In the guidance on those regulations published by the Health and Safety Executive in 2015 as L153 (‘the L153 guidance’) principal contractors are described as:

“contractors appointed by the client to co-ordinate the construction phase of a project where it involves more than one contractor”.

4. The respondent was given permission to amend his response. The main thrust of that response, resisting the appeal, was that the activity in question was being carried on under the control of Engie. Reference was made to the duty of the principal contractor as set out in Regulation 13(1) of the CDM 2015. That is to:

“plan, manage and monitor the construction phase and co-ordinate matters relating to health and safety during the construction phase to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety”.

5. The appellant’s evidence was given by Mr Craig Senior, project manager with Engie and Mr Mark Hanks, contracts manager. Expert evidence for the claimant was given by Dr Mike Webster who had prepared a report which we have considered.

The respondent himself gave evidence and there was also evidence from Mr T M Johnson who is also an HM inspector of health and safety. The respondent’s expert evidence was given by Mr David Hill who is one of Her Majesty’s specialist inspectors within the construction engineering specialist team of the health and safety executive. Mr Hill had prepared a report and an addendum report and again we have considered both of those documents.

6. We have had the benefit of a two volume trial bundle. Within the first were copies of the Act, the L153 guidance (which has within it the full text of the CDM 2015) and also various authorities. One of those authorities is HM Inspector of Health and Safety v Chevron North Sea Limited. The report which is within the bundle is that of the Inner House of the Court of Session. However the authority which we have been referred to by both parties is the Judgment subsequently given by the Supreme Court (2018 UK SC7).

7. Our findings of fact

7.1. The appellant is a housing and construction company and as their name suggests, that includes the refurbishment or adaption of existing buildings.

7.2. One of the appellant’s projects is known as the Kelham Island scheme or project. The client is an investment management company called Cheyne Capital. When, in 2016, the appellant tendered for this project



it was known as Keep Moat Limited but subsequently changed its name to Engie Regeneration Limited. As part of the tender process the appellant approached Cidon on the basis that Cidon would be the primary sub-contractor on the project. The two companies had worked together previously on similar projects. Cidon were on Engie’s procurement list prior to the Kelham Island Sheffield project. We were told that that meant that Cidon would have been thoroughly reviewed by Engie’s sub-contractor administration team.

7.3. Mr Hanks’ evidence was that Cidon was a trusted and competent contractor and Engie placed significant reliance upon them in the planning and delivery of the project.

7.4. The Kelham Island site had previously been a nut and bolt manufactory/foundry. Following some demolition and site clearing work in 2016, the project itself commenced in January 2017. At the date of our hearing it was ongoing and we were told would not be completed until late 2019.

7.5. Mr Senior’s evidence was that at least two weeks prior to a subcontractor commencing works they would submit their risk assessments and method statements (RAMS) to Engie so that that documentation could be considered and reviewed. The relevant risk assessment is at pages 214 to 215 in volume two. However we have also been referred to an additional copy of the first page of that document at page 9. The latter is in fact the photograph of the only part of the risk assessment that was on display in the site cabin/office at Kelham Island on the day of the respondent’s inspection. The photograph was taken by the respondent himself. On page 1 of the document various hazards are listed including:

Collapse of excavation sides.

Falls of equipment into excavation.

Passing plant causing collapse of excavation.

Falls into excavation.

The document also has a section headed “Control measures”. The control measure for the hazard of the collapse of excavation sides is stated to be as follows:

“Should personnel need to access the excavation, the sides of the excavation will be supported if required using proprietary, or similar support systems subject to the ground conditions and correct access provided. UNDER NO CIRCUMSTANCES SHALL PEOPLE BE PERMITTED TO WORK OUTSIDE THE SUPPORTED AREAS”.

7.6. The type of work that Cidon was contracted to undertake for Engie included the construction of foundations, also described as sub-structure works.

7.7. We find that the relevant method statement is that which is described as MS01 and dated 12 December 2016. A copy appears in the bundle at pages 299 to 307. We had also been directed to the method statement described as MS11dated 3 January 2017 which is at pages



412 to 419. However we find that this latter statement is not relevant to the work in respect of which the notice was served. The description of the work in MS11 is “Attendance works to the piling contractor and removal of excavated spoil”. We find that this relates to piling work which had been undertaken by Cidon prior to the material period.

7.8. Returning to MS01, there is a section headed “Excavations & Pile Cropping”. This appears on page 303. The work being undertaken here was the cropping of the previously installed piles, whereby the protruding concrete pile would have its top section mechanically cropped to expose the steel rods within so that in due course those rods could be used when concrete beams were being installed as a further part of the sub-structure.

7.9. Among the methods set out under the ‘excavation and pile cropping’ heading are the following –

“

An assessment of the excavation will be made by the site supervisor (who we find would have been a Cidon employee) but it is expected that the formation level will be no more than 1.2m, therefore trench support will be unnecessary.

As access is required to formation level this should be via an access ramp dug to the side of the cap at a gradient of not less than approximately 1 in 4, should the excavation require to be left unattended at any time then the area MUST be fenced off.”

7.10. Engie had their own safety health and environmental plan (SHE) and a copy is at pages 27 to 45 in the bundle. This document includes the following statement:

“As the Principal Contractor we have established a health and safety strategy for the works with a target of zero accidents of all types, and in addition we will set up a benchmark standard for the monitoring of health and standards on this project by means of a system of monitoring of incident and accident frequency rates, using both active and re-active monitoring procedures prior to the commencement of works. All contractors working on this project will be expected to achieve a similar standard and provide outline procedures for inspecting and auditing during the project”. (See page 28).

The document also includes a brief description of what various individuals within Engie working on this project have responsibility for. This refers to both a project manager and a site manager. Mr Senior explained to us that whilst his overall job title with Engie is project manager, he was in respect of the Kelham Island project in effect the site manager. A brief description of his duties in that capacity is set out on page 35 and this includes “stopping unsafe working practices”.

On page 38 of the bundle and still as part of the SHE plan the following appears:

“The work of contractors will be co-ordinated by the Site Manager who will ensure that the activities of the individual contractors do not pose



health and safety risks to other persons on site. This will be achieved by daily informal contact with contractor’s supervisors.”

That section goes on to refer to regular and ad hoc site meetings which will, among other things, discuss health and safety issues arising from the work and anticipate any new health and safety problems to ensure that there are risk assessments and safety method statements to cover those. It is said that minutes of such meetings will be kept and a copy filed on site. The Tribunal have not seen any minutes of any such meeting. Specifically we have not seen minutes and we understand there are no minutes in respect of ad hoc meetings which took place between employees of Engie, including Mr Senior and employees of Cidon on 21 and 22 August 2018.

7.11. In a subsequent part of the SHE plan (pp 46-47) under the heading of ‘Unstable structures’, the following appears:

“Where we identify the possibility of an unstable structure, we will stop work immediately and inform the Temporary Works Co-ordinator (who we find was an employee of Engie being either at one stage a Mr Mack and at other times a Mr Shakill Akram) and principal designer (who is a third party company called WCEC of Chesterfield). We will ensure the structure is made safe in accordance with the engineer’s recommendations prior to recommencing works. Keepmoat has a Temporary Works Co-ordinator who reviews and approves all designs for propping, temporary structural support etc.

The potential for unstable structures will be considered in subcontractor risk assessments and method statements where applicable.”

7.12. There is some debate as to whether the cause of the risk in the case before us (an excavation which included a sheer face) comes within the definition of “unstable structure”. However we note the broad definition of ‘structure’ given in Regulation 2 of the CDM 2015.

7.13. We were told that ‘temporary works’ is a term which applies to the exercise of finding an engineered solution to a problem, usually one that was not anticipated, that arises during the course of construction work.

7.14. Mr Senior’s evidence was that Engie had a regime for routine daily monitoring of the work being undertaken by Cidon. That included a requirement for Engie to issue ‘Permits to dig’ to Cidon and also daily walk rounds and visual inspections of what Cidon were doing. Engie has a published SHEQ (safety health environment and quality) monitoring and inspection procedure and that document begins at page 117. Part of the regime is monitoring visits, which are described on page 143 as being “an unannounced visit by one of our SHEQ team to ensure that the site is legally compliant and working to Engie standards. During the visit they will assess the state of the health, safety and environment performance on site by walking the site, looking at the work undertaken, the plant and equipment in use, and how the site is organised … most sites will be monitored once per quarter, but high risk sites shall be visited more frequently”.



7.15. We also have in the bundle notes of what are described as GO visits. We understand that that is an acronym for ‘guidance and observation’ visits. This documentation begins at page 145 in the bundle. None of the matters referred to in these reports is in respect of the relevant matter before us.

7.16. From time to time there were also what were described as director’s visits. An example of the record of one of these is at page 96 in the bundle. A Mr Brough, Engie’s regional director, had visited on 18 January 2017. The project had only just commenced at that stage. The most recent director’s visit prior to the incident with which we are concerned took place on 16 August 2018 by Mr Hanks in his capacity as contracts manager. A note of that visit is at page 115.

7.17. On 20 August 2018 Engie issued a permit to dig document to Cidon. A copy appears at pages 63 to 64 in the bundle. The location of the excavation in question was the part of the development known as Block D and within that block the work was to centre on the beams and pile caps. The description of work set out in the permit is as follows:

“JCB 13 tonne, ~ 2m below current ground level, Cropper for pile cropping, stihl saw and breaker”.

The form also has a section where commencement and progress checks are reported and that part has been completed by Mr D Hamstock, who is described in Mr Hanks’ statement as being employed as a freelance site supervisor for Engie. It is to be noted that the only relevant method statement (MS01) had anticipated that excavations would be no deeper than 1.2 metres (see page 303).

7.18. On the following day, Tuesday 21 August 2018 Mr Senior was informed by a Mr Mick Wilks, an Engie site supervisor, that as a result of the work referred to above, Cidon had caused there to be a sheer face within the excavation on the Green Lane elevation of it. That had happened because Cidon whilst carrying out the excavation had come across a pre-existing retaining wall which was not where they expected it to be. It was found to be within the proposed building line and was removed, possibly in error. An impromptu meeting took place between Mr Senior and a Mr Con O’Shea, Cidon’s contract manager. Mr Wilks was also present. Mr O’Shea said that Cidon were already aware of the sheer face (unsurprising as they had created it) and that they had ordered some sheet piles to retain that sheer face. Mr Senior assumed that that would involve the installation of what he describes as a full face of interlocking sheet piling running the length of the sheer face. Mr Senior was also told by Mr O’Shea that Cidon had instructed their temporary works team to work out an alternative method and plan now that the retaining or boundary wall was found to be in their way. Of course it was now not in their way as far as the excavation undertaken the previous day was concerned because that part of the retaining wall had been removed.

Further Mr O’Shea confirmed to Mr Senior that Cidon would now clear the relevant work area; put some fencing around the work, that is around the perimeter of the excavation; put fencing in the bottom of the excavation itself to ensure that nobody worked near the sheer face of



the excavation (although of course clearing the work area would suggest that no-one should have been working in the excavation at all) and that a no go area would be demarcated by chevrons. Although reference was made to fencing, Mr Senior understood that this would be in the form of crowd control barriers. This discussion was not documented. Mr Senior’s evidence was that having been given assurances by Cidon he was confident that those steps would be taken and no further steps by Engie were required at that time. The meeting took place around lunchtime on 21 August.

7.19. A permit to dig had been issued for 21 August and a copy appears at pages 65 to 66. Again the location was ‘Block D beams and pile caps’ and the description of work was:

“Shovel, stihl saw, breaker, 13 tonne excavator.”

In part 6 of this form (commencement and in progress checks) three employees of Cidon are named, although there is only one signature and, confusingly the three times given are, in each case, 7.30. It is therefore unclear what, if any, work was undertaken in the excavation that day – but presumably some otherwise progress checks would not have been necessary.

7.20. On Wednesday 22 August 2018 Mr Senior was informed at lunchtime that the piling sheets had been delivered but there were insufficient to cover the entire sheer face. Cidon indicated that they were endeavouring to get more sheet piling, but in the meantime they would put in what they had. In his witness statement Mr Senior refers to these as being 15 or so but on the photographs we have seen only nine could be detected. The photographs date from the following day and were taken by the respondent. It appears that on 22 August the crowd barriers had been put in place – very close to the edge of the perimeter of the excavation - but it is common ground that no crowd barriers or other fencing was ever placed within the excavation – either by the sheer face or anywhere else. Mr Senior remained confident that Cidon were, as he described it, being proactive and he felt no reason for concern understanding that the additional sheet piling would be provided that day.

7.21. However on Wednesday 22 August a permit to dig had nevertheless been issued. A copy is at pages 67 to 68 in the bundle. The location is described as ‘Block D pile caps’ and the description of the work is given as “Excavation round piles with JCB 13 tonne excavator”.

We find that this work is not a description of the installation of any sheeting piles because we were told by Dr Webster that these would be hammered in, rather than holes being dug for them. The permit to dig was issued by Mr Hanstock but the progress checks set out in part 6 were undertaken by Mr Joe Marshall, Cidon’s foreman/supervisor. The time given for commencement is 7.30 and the second time given is 1500. The clearance and cancellation after work section, part 7, is signed by a Mr Donnelly for Cidon and by Mr Hanstock for Engie and in each case times given are 1800.



7.22. It was Mr Senior’s evidence that he had not seen anyone working in the excavation on this date. However having regard to the permit to dig documentation referred to above, we find on the balance of probability that, contrary to the assurances apparently given to Engie by Cidon, work was carrying on in the excavation without the installation of sufficient sheet piling against the sheer face.

7.23. On Thursday 23 August 2018 Mr Johnson was walking to work along Green Lane, the Health and Safety Executive’s office being nearby. Through the fencing separating the site from Green Lane, Mr Johnson saw the excavation. From his position he would not have been able to see the sheer face but he was concerned that the other sides of the excavation were not, in his opinion, battered back to a safe angle. We were told that ‘battered’ is a technical term for sloped. Nor were those sides benched. We were told that ‘benched’ is a technical term for stepped. In addition he could see no means of supporting the excavation. He believed the material in question to be ‘made up’ - a combination of demolition rubble or construction waste and that this material was highly unstable. He also observed a ladder resting at the end of the excavation and this led him to believe that work was going to be carried out in an unprotected excavation. When Mr Johnson got to his office he spoke to his colleague, the respondent whose area for inspection this site was within. It was agreed that Mr Johnson and Mr Whitesmith would now immediately visit the site to investigate further.

7.24. The respondent’s evidence was that upon inspecting the excavation it was noted that it was in very close proximity to both Engie’s site office and the site gates. On three sides of the excavation it was unsupported and the respondent considered that it had not been battered back to a safe angle. There was particular concern because it was made ground. Access and egress was by an unsecured ladder which the respondent felt was unsafe. The side of the excavation nearest to the highway, Green Lane, was observed to have what the respondent described as intermittently placed metal sheets. These are the piling sheets referred to above, and, as mentioned earlier can be seen on four of the five photographs which the respondent took whilst on site. Mr Senior informed the respondent that there was no temporary works design or engineer’s calculation for the installation of the piling sheets. The respondent was of the opinion that this was a hit and miss installation as an afterthought. It appeared that no-one was aware how deep those sheets had been installed. The respondent also noted that there were in place a number of concrete blocks (referred to as ‘kentledge’) which were being used to support the site hoarding between the excavation and Green Lane. The respondent was also concerned about the effect that vibrations would have on the excavation as it had been left. That vibration would be coming from the adjoining highway along which large plant and lorries would be passing and also from plant on the site itself, such as a large excavator. The respondent also observed a man working within the excavation. This turned out to Mr Marshall, Cidon’s foreman. He was carrying out work of putting plastic caps on the top of rods which were jutting out from the tops of the now cropped piles. Photograph 2 (page 5 in



volume 2) shows Mr Marshall kneeling down with his head down attending to the plastic caps immediately against the sheer face.

7.25. The respondent was also concerned that the crowd control barriers at the top of the excavation had been placed too close to the edge of the excavation with the result that if, for instance, an operative was to lean on the barrier there was the risk of it and the operative toppling over into the excavation.

7.26. In these circumstances the respondent was of the opinion that there was a very real risk of personal injury posed to operatives working within the excavation. That is that they could be struck, buried and trapped by a fall or dislodgement of materials. Accordingly the respondent felt that it was appropriate to serve prohibition notices on both Engie and Cidon. He believed that it was proportionate to serve the notice on Engie because if he had only served a notice on Cidon that would not have legally prohibited others entering or working in the excavation. During the course of cross-examination the respondent explained that he was concerned that Engie might otherwise have instructed another contractor or labourer to enter into the excavation to carry out work other than of a remedial nature.

7.27. Cidon did not subsequently appeal the prohibition notice which had been served upon them.

7.28. There was some issue before us as to whether any further work was carried out on 23 August 2018, subsequent to the inspector’s visit. We were taken to a further permit to dig document at page 69. However it was pointed out that this gave the location of the excavation as Block C, rather than Block D. On balance we conclude that this permit relates to work in a different area than that which we are concerned with. Alternatively if it was in fact work being undertaken in Block D we would find that it was no more than remedial work, hence the reference to backfill.

7.29. Upon service of the notice, Cidon acted promptly by preparing an improvement report which included various revised method statements. The report, dated 24 August 2018, begins at page 229. A revised method statement (MS01.2) -a methodology - was prepared as part of that report. Mr Rob Smith, Cidon’s design director, sent an email to the respondent on 24 August 2018 attaching a copy of that methodology along with a revised risk assessment and method statement. By that stage, backfilling had already taken place adjacent to the boundary and Mr Smith recorded that it was not Cidon’s intention to proceed further in the area of the boundary with Green Lane until the temporary works scheme had been finalised. As part of the revised method statement all sides of the excavation were to be battered to a minimum 1 to 1 gradient or equivalent benching. Any excavation which could not meet those basic batter requirements had to be referred to the temporary work supervisor or the work would not proceed until the designed solution had been implemented. There were requirements for the excavation area to be fenced off appropriately.



8. The parties’ submissions

8.1. Appellant’s submissions

Mr Matthews began by referring us to the Health and Safety at Work Etc Act 1974, section 22 which deals with prohibition notices. In particular he referred us to the references made within that section to its application to activities which were being carried on by or under the control of any person. The standard text of a prohibition notice also referred to activities being carried on “under your control”. Mr Matthews reminded us that the essence of the appeal was that the work in question was not being carried on under the control of Engie.

The only work being undertaken at the time the notice was served was Mr Marshall putting on the yellow caps.

Returning to the 1974 Act Mr Matthews reminded us of the general duties of employers to their employees as set out in section 2 and the general duties of employers to persons other than their employees set out in section 3.

The CDM 2015 identified the duty of the principal contractor. That regulation and the guidance made under it informed what the principal contractor should do and what was within its control. Regulation 13(4)(a) provided that the principal contractor must ensure that a suitable site induction was provided.

Mr Matthews noted that Mr Johnson had in his witness statement made four references to Cidon working under the direct control of Engie. Mr Matthews pointed out that paragraph 1 to 8 of the L153 guidance referred to good supervision as part of the managing duty but said also that principal contractors did not have to undertake detailed supervision of contractor’s work. We were reminded that Mr Hill’s expert evidence had been that Engie were in direct control of Cidon but nevertheless he had agreed that Engie had not provided or needed to provide detailed supervision of Cidon. Whilst Mr Hill had accepted that detailed supervision would be required for direct control, he did not accept the proposition that there could be no direct control if there was no detailed supervision. Mr Hill had also referred to ‘immediate control’ and ‘ultimate control’ and he had been of the view that Engie was in ultimate control of Cidon.

Nowhere did Regulation 13 provide that the principal contractor controlled the works of the contractor.

Even if Engie contravened Regulation 13 that that did not mean that they were in control of the work at the time of the prohibition notice.

Cidon were a specialist contractor. It was no part of Engie’s role to provide direct control or detailed supervision. The individual who was observed working in the excavation by the inspectors was not under the control of Engie.

8.2. Respondent’s submissions



Mr Wright began with section 22 of the Act. That section made reference to ‘control’, not direct control, indirect control or overall control. Mr Wright believed that the parliamentary draftsman had intended that. Mr Wright pointed out that because of what is said in section 22(3)(c), a prohibition notice could be served even if there was no breach of a relevant statutory provision. The only pre-requisites were an activity and the inspector’s opinion that the activity involved or was likely to involve a risk of serious personal injury.

The Tribunal’s powers on an appeal were set in section 24(2) and “modification” was defined in section 82 (the complete Act is not included in the bundle, but section 82 is within the extracts from the Act that are within Butterworth’s Employment Law handbook.

We were taken to the Judgment in the case of Chrysler United Kingdom Limited v McCarthy (Tab 8) which held that the appellate jurisdiction of an Employment Tribunal under section 24(2) envisaged an investigation by the Tribunal of the facts and included the jurisdiction to re-draft any notice which was found by it to be imprecise. The Judgment also had something to say about modifications (see page 4 of the report in the bundle).

The scope of such appeals had also been addressed in the Supreme Court Judgment in the case of HM Inspector of Health and Safety v Chevron North Sea Limited and we were referred to paragraph 14 of the Judgment given by Lady Black in that case. From these pronouncements the following propositions could be drawn. The appeal was a true appeal rather than a public law judicial review approach. The Employment Tribunal should give due regard to the experience of and opinion given by an inspector. The Tribunal had to focus on the position on the ground when the notice was served but in doing so it was permissible to take into account matters both pre and post the issue of the notice.

In the case before us, the post notice steps had included a revision of the method statement and a toolbox talk. These were all relevant matters. Mr Wright contended that although those matters had been done to comply with the notice, they were matters which should have been dealt with before the notice had been served.

In relation to Regulation 13, “construction phase” was defined in Regulation 2 and that would have begun in January 2017 and was ongoing at the date of our hearing. Accordingly the duties owed by Engie had been in place throughout 2017, 2018 and would be for most of 2019.

Regulation 13 required the principal contractor to plan, manage, monitor and co-ordinate matters relating to health and safety during the construction phase. These were separate considerations and it was only necessary for there to be a breach of one element in order to breach the duty.

We were taken to paragraph 117 of the guidance which explained that whatever the circumstances (that is whether or not two or more projects were taking place on the same site at the same time) it was



essential that there was clarity over who was in control during the construction phase in any part of the site at any given time. The guidance went on to refer to a situation where it was not possible for one principal contractor to be in overall control and in such cases there had to be co-operation and co-ordination between principal contractors.

Noting that the contention of Mr Matthews was that “control” should be construed narrowly as direct control, the respondent said that that was quite wrong. Instead control should be understood as meaning overall control. We were also reminded that when giving guidance on the co-ordinating aspect of the duty, the guidance at paragraph 130 made reference to contractors being under the control of a principal contractor.

Common sense and the evidence before us led to the conclusion that Engie had control over Cidon. We should take into account the safety health and environment plan and also the permit to dig documentation. Mr Wright described the situation as being one where Engie would say when Cidon’s man could pick up the shovel and it was only then that Cidon could ask their man to pick up the shovel. We were reminded that the permit to dig documentation included progress checks which were usually signed by Engie and that at part 7 the clearance and cancellation after work was always countersigned by Engie.

In terms of breach we were reminded that the expert for Engie, Dr Webster, had almost conceded that there was breach in terms of absence of monitoring in the material period of 21 August to 23 August. He had struggled to avoid that conclusion. It was also clear that most of the assurances which Mr O’Shea had given to Mr Senior on 21 August had not been complied with at all and the sheet piling was partial. Engie had therefore fallen down the job in terms of monitoring. They had not picked up that the promised actions had not been taken.

Mr Wright described the issue of a permit to dig on 22 August as breath-taking. Cidon’s improvement report (at page 231) had made reference to the immediate stoppage of the excavation works.

Engie should have managed and monitored the situation. It was only when the prohibition notice was served that things started to happen. There had also been a failure by the respondent in terms of planning. If the risk assessment and method statements had been adequate in 2016, there had not been an appropriate method statement in place at the time of the excavation on 20 August 2018. Engie should have taken stock of the method statement and realised that there was no plan for what was being done. Simply to say that Engie had accepted assurances from Cidon was insufficient. Mr Wright concluded by reiterating that Engie should be regarded as being in control because they had overall control.

9. The relevant law

9.1. The law in relation to our task

The Health and Safety at Work Etc Act 1974, section 24 provides as follows:



“A person on whom a (prohibition) notice is served may within such period from the date of its service as may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit”.

It was noted in the Judgment of the Supreme Court in HM Inspector of Health and Safety v Chevron North Sea Limited that it was common ground that such an appeal is not limited to a review of the genuineness and/or reasonableness of the inspector’s opinion, but requires the Tribunal to form its own view of the facts, pay in due regard to the inspector’s expertise. It was also common ground that the Tribunal should focus on the risk existing at the time when the notice was served.

Later in that Judgment, at paragraph 24, the following appears:

“… on an appeal under section 24, the Tribunal is not limited to considering the matter on the basis of the material which was or should have been available to the inspector. It is entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served”.

9.2. Law on the ‘control’ issue

Section 2 of the Act imposes the general duty of ensuring health and safety to the employer’s own employees. The matters to which that duty extends includes-

“so far as is reasonably practicable as regards any place of work under the employer’s control, that that place of work be maintained in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks.”

Section 3 sets out the general duties of employers to persons other than their employees and that requires every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, those persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

We note that in his closing submissions, Mr Matthews accepted that the relevant undertaking of Engie was that of a principal contractor at the Kelham Island site.

Section 22 of the Act deals with prohibition notices. The context is

“any activities which are or are likely to be carried on by or under the control of any person.”

“Control” is neither defined nor qualified.

Regulation 13 of the CDM 2015 sets out the duties of a principal contractor in relation to health and safety during the construction phase (as defined in Regulation 2). The duty is



“The principal contractor must plan, manage and monitor the construction phase and co-ordinate matters relating to health and safety during the construction phase to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety”.

The HSE guidance to these regulations (as set out in L153) explains that a principal contractor is:

“…the organisation or person that co-ordinates the work of the construction phase of a project involving more than one contractor, so it is carried out in a way that secures health and safety. They are appointed by the client and must possess the skills, knowledge and experience, and (if an organisation) the organisational capability to carry out their role effectively given the scale and complexity of the project and the nature of the health and safety risks involved” (paragraph 116).

Paragraph 117 of the same guidance explains:

“There may be occasions where two or more projects are taking place on the same site at the same time, but are run independently of one another. Whatever the circumstances site it is essential that there is clarity over who is in control during the construction phase in any part of the at any given time. Where it is not possible for one principal contractor to be in overall control, those principal contractors involve must:

(a) co-operate with one another

(b) co-ordinate their work; and

(c) take account of any shared interfaces between the activities of each project (eg shared traffic routes.”

Paragraph 118 of the guidance explains that:

“Good management of health and safety on site is crucial to the successful delivery of a construction project. In liaison with the client and the principal designer, principal contractors have an important role in managing the risks of the construction work and providing strong leadership to ensure standards are understood and followed”

The Regulation 13 guidance goes on to explain, under the heading of the “Managing” aspect of the duty the following, at paragraph 126:

“Managing people to prevent and control risk requires leadership. Principal contractors can demonstrate visible leadership through the actions of their managers. These actions include setting standards for working practices and providing an example by following them. Leaders in health and safety should have a strong grasp of what is needed in a given situation, make clear decisions, and be able to communicate effectively”.

At paragraph 128, the guidance explains that good supervision is part of showing leadership in health and safety although it goes on to state:

“Principal contractors do not have to undertake detailed supervision of contractors work”.



The Regulation 13 guidance goes on to deal with the co-ordinating aspect of the duty and paragraph 130 of the guidance begins:

“A principal contractor has a specific duty to ensure that contractors under their control co-operate with each other so the risks to themselves and others affected by the work are managed effectively.”

9.3. Regulation 22 of the CDM 2015 deals with duties in respect of excavations in these terms

“(1) All practicable steps must be taken to prevent danger to any person, including, where necessary, the provision of supports or battering, to ensure that –

(a) no excavation or part of an excavation collapses;

(b) no material forming the walls or roof or, or adjacent to, any excavation is dislodged or falls;

(c) no person is buried or trapped in an excavation by material which is dislodged or falls.

(2) Suitable and sufficient steps must be taken to prevent any person, work equipment, or any accumulation of material from falling into any excavation.

(3) Suitable and sufficient steps must be taken, where necessary, to prevent any part of an excavation or ground adjacent to it from being overloaded by work equipment or material”.

10. Our conclusions

10.1. In the period 20 to 23 August 2018 was the relevant work being carried out under the control of Engie?

The appellant’s case has sought to equate “control” with “direct control”. Certainly that was the basis of a series of questions which Mr Matthews put to the respondent’s expert Mr Hill. Initially Mr Hill drew the distinction that it was Cidon who were in direct control of the work whereas Engie had overall control. However, confusingly in subsequent replies Mr Hill contradicted himself by appearing to accept that ultimate control meant direct control. There were then a series of questions to Mr Hill to the effect that there could only be direct control if the principal contractor undertook detailed supervision of the contractor. However the L153 guidance made it clear that principal contractors did not have to undertake detailed supervision (paragraph 128).

Mr Wright’s submission however was that section 22 of the Act refers to “control” and the L153 guidance refers, albeit in circumstances which do not apply here (where two or more projects are happening on the same site at the same time) to a principal contractor being in overall control (paragraph 117).

We therefore consider the introduction of the concept of direct control misleading. That phrase does not appear in the legislation or guidance. Unsurprisingly it does not appear in the standard wording of the prohibition notice as that refers only to “under your control”.



The duties cast upon the principal contractor by Regulation 13 (plan, manage, monitor and co-ordinate health and safety) are duties which can only be discharged if the principal contractor has control. “Principal” connotes seniority and responsibility.

In practical terms, Engie exerted control by viewing and approving risk assessments and method statements submitted by Cidon, and specifically in relation to excavations, by the issue of permits to dig. Moreover, we find that the rationale for the lunchtime meetings between Engie and Cidon on 21 and 22 August was Engie exercising its power of overall control. If this had not been the case, the only reason for those discussions would have been Engie’s idle curiosity as to how Cidon would resolve this civil engineering problem.

We take the view that in the case before us, the appellant has sought to place undue importance on the absence or exclusion of a requirement for detailed supervision.

In these circumstances we are satisfied, on the basis of our analysis and having due regard to Mr Whitesmith’s expertise, that the work in question in respect of which the prohibition notice was issued was under the control of Engie within the meaning of the legislation. Whist the evidence of Mr Senior and Mr Hanks was to the effect that great care had been taken in the appointment of Cidon as contractor and that Cidon had proved themselves to be reliable and efficient in other projects, we do not consider that that meant that Cidon could simply be left to get on with matters as they saw fit. There remained the overall control obligation of Engie.

10.2. Was Engie in breach of any of the statutory duties included in the prohibition notice?

This is Engie’s secondary ground of appeal. As we have noted, they do not dispute that at the material time there existed a risk of serious personal injury arising from work within the excavation.

By reference to Regulation 13, the prohibition notice gave the reason for the issue of it to be that Engie had failed to plan, manage and monitor the relevant construction work.

We should add that whilst the second ground of appeal is couched in terms of whether there was a breach of each of the statutory duties, Mr Wright points out, and we accept it to be the case, that Engie would be in breach if one or more of those statutory duties had not been complied with.

In terms of the planning duty, whilst we are aware that the lunchtime meetings took place, regrettably there are no minutes of those meetings. No such documentation could therefore be produced to Mr Whitesmith on the day of inspection. Nor was there any temporary works documentation. We accept that it would have taken some time for this to be produced once the risk was identified and realised but then again we note that very promptly, it appears the day after the notice was served, a comprehensive improvement report with input from the temporary work engineer was produced.



Although not documented, Mr Senior’s evidence was that Mr O’Shea of Cidon agreed that the work area would be cleared; sheet piles would be installed to the sheer face; fencing would be placed round the perimeter of the excavation and further fencing would be placed within the excavation so as to cordon off the particularly dangerous area being the immediate vicinity of the sheer face.

In relation to the managing and monitoring duty, we find that what Cidon promised to do and what Mr Senior in his evidence accepted to be suitable would indeed have been suitable and compliant, on an ad hoc basis, with the Regulation 22 obligation. However it is clear that what Cidon had promised was not delivered. It would have been obvious to Mr Senior and the other responsible employees of Engie on site that ineffective fencing in the form of crowd control barriers had been installed too close to the edge; that no fencing was installed within the excavation itself and that an insufficient amount of sheet piling had been sourced and installed. It seems that Engie had no information from Cidon as to the depth to which the piling had been installed or how some nine sheets only over a fairly lengthy sheer face could be a satisfactory solution. There is then the issue of clearing the work area. That is to say not allowing work to be undertaken in or adjacent to the excavation. Having regard to our findings in relation to the permit to dig issued on 22 August 2018 (pages 67 to 68) we find that having apparently agreed the day before that the work area would be cleared Engie then blithely issued a permit to dig which would involve work being undertaken in precisely that area. It follows that rather than managing and monitoring the remedial works to be undertaken by Cidon, they were instead content to allow Cidon to carry on work as normal. That of course is emphasised by the fact that at the very time of the inspection visit an employee of Cidon was observed working kneeling down and head down immediately adjacent to the unfenced sheer excavation face. Dr Webster, the expert for Engie was forced to accept during cross-examination that he would have expected an instruction from Engie for work to be stopped other than purely remedial work. He said that Engie had received assurance from Cidon but he would have expected evidence of some monitoring by Engie. We find that there is no evidence or documentation in respect of monitoring but to the contrary there is documentation which indicates on the balance of probability that work was continuing.

We therefore find that the second ground of appeal also fails.



Accordingly we find that it was proportionate for Mr Whitesmith to serve the prohibition notice on the appellant and we affirm that notice without modification.

Employment Judge Little

Date 18th June 2019

2501756-2018 rjr (002) - assets.publishing.service.gov.uk · &dvh 1xpehu 5hvhuyhg mxgjphqw zlwk...

Documents