Claimant v HM Inspector of Health & Safety, N Buchanon — 2022

Mr Saad Faraj appealed two Improvement Notices issued by HSE inspector Nicole Buchanon in relation to work at 66 Mutley Plain, Plymouth. The first notice, INB28102021/01, was dated and handed to him on 28 October 2021 and alleged a breach of COSHH Regulation 7(1) concerning silica dust. The second notice, INB08122021/01, was dated 8 December 2021 and was received by him on 20 December 2021; it alleged breaches of section 3(1) of the Health and Safety at Work etc Act 1974 and Regulations 8(1) and 13(1) of the Construction Design and Management Regulations 2015. The tribunal also noted that Fee For Intervention notices were not part of the appeal before it and that there was no right of appeal against them to the Employment Tribunal.

The tribunal held that the relevant appeal periods were 21 days under section 24 HSWA and Rule 105 of the Employment Tribunal Rules. On that basis, the first notice had to be appealed by 17 November 2021 and the second by 9 January 2022. Mr Faraj did not present his ET1 until 8 March 2022. In considering whether the appeals could still proceed out of time, the tribunal referred to Palmer and Saunders v Southend-on-Sea BC and London Borough of Wandsworth v Convent Garden Market Authority on the meaning of "reasonably practicable" and "reasonably feasible".

For the first notice, the tribunal found that Mr Faraj did not indicate any intention to appeal until 21 December 2021, after the time limit had expired, and that HSE then gave him repeated guidance on 22 and 29 December 2021, 26 January 2022 and 14 February 2022 about how to appeal. It held that it had been reasonably practicable for him to present the appeal in time and, even if not, that he had still failed to lodge it within any further reasonable period. The appeal against INB28102021/01 was therefore dismissed.

For the second notice, the tribunal accepted that Mr Faraj was abroad until 9 January 2022 because his children had Covid-19, but found that he had internet access and had already been told, including by email on 29 December 2021, that any appeal had to be made to the Employment Tribunal. It found that he had not explained why an online appeal could not have been filed while abroad and that his concerns about the ET1 form were raised only after the limitation period had expired. The tribunal again held that it was reasonably practicable to appeal in time, and dismissed the appeal against INB08122021/01.