MWH UK Ltd v Wise (HM Inspector of Health & Safety)
2014
ADMINISTRATIVE COURT
UK
CORAM
- THE HON. MR JUSTICE POPPLEWELL
Areas of Law
- Employment Law
- Health Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
MWH served as the construction design and management coordinator for a Northumbrian Water Limited project during which asbestos was discovered. This led to an Improvement Notice from a Health and Safety inspector, primarily due to MWH's failure to advise on a full asbestos survey before commencement of work. An Employment Tribunal upheld the notice but identified the issue as a systems failure rather than incompetence, modifying it accordingly. MWH's appeal against the decision was dismissed, confirming their breach of duty, the tribunal's power to modify the improvement notice, and the practicality of the modification despite its initially unspecified terms.
Judgment
The Hon. Mr Justice Popplewell:
Introduction
This is an appeal against the decision of the Newcastle Employment Tribunal dated 12 December 2012, modifying an improvement notice dated 7 November 2011 issued by the Respondent inspector of health and safety pursuant to s.21 of the Health and Safety at Work Act 1974 (“the Improvement Notice”).
The Appellant (“MWH”) was the construction design and management co-ordinator for a project of refurbishment carried out for Northumbrian Water Limited (“NWL”) known as the Jarrow Inlet and Siphon project. The project involved the refurbishment of services connecting NWL’s facilities on the south of the River Tyne at Jarrow with those on the north at Howdon. During the course of the project it was found that asbestos was present to which employees of those involved in construction had been exposed. The Improvement Notice found that MWH had collected the pre-construction information without having the necessary level of competence to be able to give suitable and sufficient advice to NWL as to whether the information provided was adequate in relation to the risk of presence of asbestos. The Improvement Notice required training by way of remedy.
The Employment Tribunal upheld the Improvement Notice but with modifications. It found that MWH had been in breach of its duties under the regulations in failing to advise NWL that no construction work should have been carried out until a full refurbishment and destruction asbestos survey had been obtained. It attributed this breach not to a lack of competence, but to a failure to have any system in place to ensure that such breach did not occur. The Tribunal did not amend the schedule to the Improvement Notice so as to identify the particular steps required of MWH in relation to such systems failure. It left the contents of the schedule to be discussed and agreed by the parties in the light of its judgment.
On this appeal MWH advances three grounds for overturning the Tribunal’s decision and cancelling the Improvement Notice:
The Tribunal was wrong as a matter of law to hold that MWH was in breach of duty in failing to give sufficient and suitable advice;
Having concluded that lack of competence was not a reason to uphold the Improvement Notice, the Tribunal could not reasonably conclude that modification was appropriate;
The nature of the modifications are unclear, so as to make the modified Improvement Notice unworkable.
The Facts
The following facts were foun