Notice of appeal
Time limit for appeal
1. When you serve a notice, you should also serve with it information telling the duty holder how s/he can appeal. If the recipient of a notice decides to appeal, they must present a claim to a tribunal office before the end of the period of 21 days beginning with the date of the service on the appellant of the notice which is the subject of the appeal. Details of the method of making an appeal (T420: Making a claim to an Employment Tribunal) and a form to use (ET 1) are available from the HM Courts and Tribunal Service[166].
2. An appellant who wishes to present a late appeal may be allowed to present the same within such further period as the Tribunal considers reasonable where the Tribunal is satisfied that it was not reasonably practicable for an appeal to be presented within the prescribed time allowed. However, inspectors should not seek to agree extensions to the period within which to present an appeal. If this is being considered then contact should be made with Legal Advisers Office to discuss the options available.
3 Unless the appeal has been rejected the Tribunal will send a copy of the same together with a response form to the inspector.
4. When you are sent a copy of an appeal you should immediately contact Legal Advisers Office to discuss the same and agree the best way forward.
Effect of appeal
5. The effect of an appeal is to suspend an improvement notice. A prohibition notice is not suspended but the appellant can apply to the Tribunal for a direction suspending the operation of the notice until the appeal is finally disposed of or withdrawn.
6. Often the prohibition notice will be complied with regardless of the appeal. You should report this to the Tribunal as a courtesy so that they are aware that an application to suspend the notice is not expected.
7. The fact that an appeal has been lodged does not preclude you from gathering further evidence. If you feel there is more evidence that can be gathered to support your service of the notice then this can be done, although it is preferable in all cases to have enough evidence to support any notice at the time of service, (see Conditions for a Valid Notice[167] in the Notices section.)
8. You (or in certain circumstances the CPS) should inform the Tribunal if you have made a decision to prosecute the individual/company (or a prosecution is almost certain), as a result of the circumstances that led to the service of the notice. You can also ask the tribunal to put the appeal of the notice on hold pending the outcome of the prosecution. Since a Prohibition Notice remains in force until the outcome of the appeal, no difficulty arises. However, an Improvement Notice is suspended where an appeal against it has been brought. This means that the circumstances giving rise to the issue of the notice will persist, possibly beyond the compliance date (depending on when the prosecution is taken).
9. There is no simple rule as to when it is appropriate to ask the Tribunal to put the appeal of an Improvement Notice on hold pending the outcome of the prosecution.
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
13. You should discuss the matter and reach agreement with your lawyer and line manager on the most appropriate course of action and then record any decisions and the reasons for them.
14. Where a notice is suspended before the full hearing of the appeal and the compliance date is passed before that full hearing, the tribunal can insert a new compliance date if it decides to uphold the notice. If, however, the appeal is withdrawn after the compliance date has passed then the dutyholder may find itself immediately in breach of the notice. This should be borne in mind, and you may wish to inform the Tribunal of this possibility so that in accepting any withdrawal of the appeal it can deal with the compliance date issue.
15. You should note that you cannot extend the time period of an improvement notice while it is the subject of an appeal. You can withdraw a notice which is under appeal (as long as the expiry date has not passed) but should you do so, the appellant may ask the Tribunal to award costs against HSE. Costs are discussed in more detail in the section Tribunal decision[168].
16. If you decide that the notice should be withdrawn (but the expiry date has passed) then you can indicate to the Tribunal that you do not intend to oppose the appeal. Again, the appellant may seek an order for costs against you and so you should discuss this with the appellant before agreeing to withdraw the notice and contacting the tribunal (see also 'Withdrawing a Notice' in the section Improvement and Prohibition Notices – Drafting Notices[169].
17. Where a notice has been complied with, the Tribunal may nevertheless decide on its validity. Appellants can decide to proceed with an appeal even after they have complied with the notice, as the service of a notice is a matter of public record which can affect their particular business.