B LTD v. Bradford Metropolitan District Council; Leeds Employment Tribunal February 2020:
Appeal against the service of an Immediate Prohibition Notice.
On the 14th January 2019 an incident happened at the appellants premises when a large moveable storage tent was being moved from the outside to the inside of the warehouse. Wind had got beneath the tent causing it to fall, and come into contact with an employee, who sustained injuries.
The matter was reported, and on the 17th January, inspectors attended the appellants premises and found the tent involved in the incident folded down, chained, and with a sign stating that it was not to be moved under any circumstances.
A second tent was inside the warehouse, and fixed next to the fence rails of a walkway, with a large heavy cage in front of it, also carrying the same sign, and with a chain (disputed) fixed at one end.
The inspector instructed the appellant not to move or use the tents; this had already been communicated to the staff prior to the visit.
A further visit too place on the 18th January 2019. Then, on the 23rd January 2019, some 9 days following the incident, and 5 days after the last visit, the inspector served a PN for immediate application (not time limited) prohibiting “current use”.
It was felt that neither tent posed a risk; and in any event, were going to be scrapped.
An appeal was lodged but in May 2019, the respondent’s requested a stay so that the prosecution of the appellant would commence. No such prosecution was instituted, and the ET lifted the stay, with the appeal to proceed; re-applying the previous orders.
The appeal was based on the Chevron case which settled the approach to be taken by an ET on whether there was a risk at the date of service, irrespective of the inspector being justified; as well as additional information.
In the result, following the service of written submissions, and evidence in accordance with court orders, on the morning of the appeal, the respondents realistically accepted that the appeal should not be resisted. The ET Chairman allowed the appeal, cancelled the PN and awarded the appellant its assessed costs.
Peter Smith was instructed by Sally Hancock, Partner at BLM Manchester.