Claimant v M MacNiven, EHO Renfrewshire Council — 2022

Gleddoch Resorts Ltd appealed against an Improvement Notice dated 31 August 2022. The question for Employment Judge A Jones was whether the notice of appeal, lodged on 30 September 2022, had been presented in time. The tribunal heard evidence from Mr Johal for the appellant and Mr MacNiven, the Environmental Health Officer who served the notice, and found both witnesses credible and reliable.

The tribunal held that service was valid on 31 August 2022 when Mr MacNiven attended at the hotel and served the notice on Mr Anderson, the appellant's General Manager, who signed a certificate of delivery. It also considered the copy sent by special delivery to the registered office in Nottingham and concluded that, on the facts, valid service had been effected on 31 August, or failing that on 2 September 2022. In reaching that conclusion, the tribunal treated section 46 of the Health and Safety at Work Act 1974 as permissive rather than mandatory and relied on section 7 of the Interpretation Act 1978.

The tribunal further held that it had been reasonably practicable for the appellant to lodge the appeal within the statutory period. It found there was no impediment to Mr Anderson informing Mr Johal or the other director while Mr Johal was on leave, no explanation for the post sent to the registered office not being collected, and no reasonable basis for the six-day delay after Mr Johal returned before seeking legal advice. It accepted that the appeal was lodged within two days of solicitors being instructed, but concluded that the appeal was still late and that the further period taken was not reasonable. The tribunal therefore held that it had no jurisdiction to consider the appeal.