Enforcement: Health and Safety at Work etc Act 1974 Section 3

The purposes of the Health and Safety at Work etc Act 1974 (HSWA) include protecting people other than those at work from risks to their health and safety when these arise out of or in connection with the activities of persons at work.

The scope of the general duties set out in HSWA Section 3 is very broad so HSE has developed a policy to guide enforcing authorities in exercising discretion Section 3, Health and Safety at Work Act - policy that complements HSE's Enforcement Policy Statement (EPS).

HSE's arrangements for enforcing section 3 need to take account of health and safety priorities - set out in HSE's strategy - whilst continuing to meet the section18 HSWA duty to make adequate arrangements for enforcing the relevant statutory provisions. HSE's current priorities for enforcement can be found at Priorities for Enforcement of Section 3 of HSWA 1974 - July 2003 (rev April 2015).

Dealing with imminent danger

Even where the responsibility for addressing risks to non-employees rests with another authority, HSE may nevertheless need to take action to secure control of an immediate risk. This may occur where there is, or is a risk of, serious and imminent danger and:

  • it is not possible for us to contact the other authority in time; or
  • the legislation enforced by the other authority does not provide adequate powers for that authority to take immediate action

In such cases relevant HSE staff should consider taking enforcement action to control the immediate risk, for example by issuing a Prohibition Notice or using their powers under s.25 HSWA. In such circumstances:

  • a senior officer (normally Band 1 in HSE) should, where possible, be consulted; and
  • agreement should, where possible, be sought from the other authority. Where this is not possible the matter should be referred to that authority as soon as possible afterwards.

Following action to control the immediate risk, relevant HSE staff actions should be limited to checking compliance with any Notice they have issued and to assuring themselves that the other authority has received their advice and acknowledged its responsibility for further action. Relevant HSE staff should also consider whether action is necessary to agree a common approach to any future work of this nature.

Scope and application of Section 3 HSWA

HSWA section 3 places general duties on employers and the self-employed to conduct their undertakings in such a way as to ensure, so far as is reasonably practicable, that persons other than themselves or their employees are not exposed to risks to their health or safety.

For section 3 to apply:

  • there must be a dutyholder - either an employer or a self-employed person, and
  • there must be a risk to the health or safety of a person who is not the employee of the duty holder or the self-employed duty holder themselves, and
  • that risk must arise from the conduct of the duty holder's undertaking. An 'undertaking' means 'enterprise' or 'business'. NB Whether a particular activity is part of the conduct of the undertaking is determined by the facts of each case [R v Associated Octel Co Ltd (1996) 4 All E R 846]. Although not decisive in every case, whether the dutyholder can exercise control over both the conditions of work and where the activity takes place is very important.

HSWA section 3 does not apply to:

  • welfare issues (such as the provision of toilets or washing facilities)
  • nuisance or amenity issues that have no health or safety implications (such as unpleasant smells arising from work activities)
  • poor workmanship, where trading standards or contractual remedies may exist, unless it has demonstrably compromised health and safety

Where a work activity has finished we are sometimes asked to intervene – for example where people have experienced illness after a building such as a school or private house has been insulated with urea-formaldehyde foam, or where the standard of plumbing or electrical work in domestic premises has been inadequate. Generally, we will not get involved in what may be essentially contractual or civil disputes except in cases where death or serious injury has occurred and initial enquiries, or information from other sources, indicate that a breach of section 3 HSWA was the probable cause or significant contributory factor. In such cases:

  • our established complaint or incident selection criteria should be used to determine if an investigation is required
  • inspectors should take into account the length of time since the work activity took place. Though it should not of itself deter inspectors from investigating, in practice the longer the time-lapse, the more difficult it can be to collect evidence and the public interest arguments for action, weaken
  • once a section 3 HSWA investigation is underway, decisions on enforcement should be made in the usual way such as in accordance with HSE's Enforcement Policy Statement and the Enforcement Management Model

Other provisions that place duties in respect of non-employees include regulation 3 of the Management of Health and Safety at Work Regulations 1999, regulation 3 of the Control of Substances Hazardous to Health Regulations 2002 (as amended), and regulation 4 of the Control of Major Accident Hazards Regulations 2015.

Should HSE investigate an incident or complaint

In the areas covered by the guidance listed in Further information, HSE will generally not start to investigate injuries to non-employees, or complaints about risks to non-employees. However, it may be appropriate to do so where initial enquiries, or information from other sources, indicate that a breach of section 3 was the probable cause of, or a significant contributory factor to, the injury or risk complained of, and:

  • there was or is a high level of risk or
  • HSE needs to act or investigate in the interests of justice

In deciding whether the criteria above are met, relevant HSE staff should consult the relevant HSE Sector team and consider all available and relevant material, including any initial information and material obtained by other relevant investigatory bodies and make a reasoned judgement, having regard to the considerations relating to effectiveness, capability, expertise etc that are set out in Section 3, HSW Act: Policy.

Where, in the event of a death and certain injuries, the decision is not to investigate, the reason for this conclusion should be recorded. Visit Investigation - Stage 2: Decide whether to investigate - Additional guidance for more information.

It may also be appropriate to record decisions in the event of certain incidents involving injury; this should be done in accordance with operational instructions. Because of the Government's responsibilities under the Human Rights Act 1998 in relation to a death where agents of the state are, or may be involved, HSE like any other authorities involved, may need to exercise its functions in a way that fulfils the requirement of an independent public investigation.

Liaison with other statutory inspection bodies and enforcing authorities

Where another authority has responsibility for legislation that deals with all relevant health and safety risks from a particular incident or complaint, HSE will generally regard compliance with their legislation as satisfying the more general HSWA duties. If a matter is clearly within the remit of another authority that authority should deal with it and we will not usually need to intervene.

In cases of the type described above that do not meet the criteria for health and safety enforcing authority involvement set out in Section 3, HSWAct: Policy and where other legislation is more appropriate, it will be sufficient to refer enquirers, complainants, etc to the appropriate authority. An example is a planning inquiry into the extension of an airport runway where other Departments have overall responsibility for aviation safety, including the planning process. HSE would not get involved except in relation to its role as statutory consultee in the planning process relating to any nearby hazardous installation.

Priorities for enforcement of Section 3 of the HSWA 1974 - July 2003 (rev April 2015)

Priorities for enforcement of section 3 HSWA are set out in HSE's priority programmes. HSE will also give priority to areas where there is a high level of risk involved or in the interests of justice, including those of the injured or bereaved. From 1 April 2011, HSE will follow its 'Guidance for FOD (and associated situational examples) in responding to (non-construction) public safety incidents where section 3 HSWA applies'.

This FOD guidance applies in full where section 3 HSWA applies but the incident is not RIDDOR reportable. Paragraphs of the guidance, on initial enquiries, reviewing investigations and recording decisions for incidents harming members of the public, apply where section 3 HSWA applies and the incident is RIDDOR reportable.

To enable HSE to meet its enforcement priorities, less priority will be given to the enforcement of section 3 in the areas below where other regulators have responsibilities; specific considerations will relate to each of these areas:

Areas regulated by other authorities and legislative regimes

Incidents relating to clinical judgement and practice, and the training, systems of work to deliver those, of doctors, dentists

Health and social care are devolved matters and there are different regulators in England, Scotland and Wales. There has been a great deal of change in recent years, and the regulators' powers, roles, remits and ways of working are all different. Therefore, the way that they respond to incidents relating to clinical judgement and practice, and the training, systems of work etc to deliver those may differ.

In England, The Care Quality Commission (CQC) is the independent regulator of health and social care. This includes the care provided by the NHS, local authorities and voluntary organisations in registered settings. They regulate:

  • Providers of healthcare services to people of all ages, including hospitals, ambulance services, clinics, community services, mental health services, dental and GP practices and other registered locations.
  • Providers of social care services for adults in care homes (where nursing or personal care is provided), in the community and in people's own homes. They focus on people who find themselves in vulnerable circumstances, including those with mental health problems, learning disabilities, physical disabilities or long-term health conditions and older people.
  • Providers of services for people whose rights are restricted under the Mental Health Act.

CQC registers care services under the Health and Social Care Act 2008 and associated regulations. It regulates those services by using data, evidence and feedback from people who use services and staff; through inspections carried out by expert teams, by publishing information on its judgements including a rating to help people choose care; and by taking action when services need to improve. CQC has a wide range of enforcement powers it can use if it finds care services are not meeting fundamental standards. CQC has published Guidance for providers on meeting the regulations and enforcement policy.

In Scotland, as of April 2011 there are two regulatory bodies: Healthcare Improvement Scotland (HIS) and Social Care and Social Work Improvement Scotland (SCSWIS). HIS scrutinise healthcare services and SCSWIS scrutinises social care, social work and child protection services. They inspect, regulate and support improvement of services and provide public assurance on service quality.

In Wales there are two regulatory bodies: The Care Inspectorate Wales (CIW) and Healthcare Inspectorate Wales (HIW). CIW regulates social care, early years services and Local Authority care support services. Regulation includes registration, inspection, and investigation of complaints, compliance support and enforcement. HIW's role is to review and inspect NHS and independent healthcare organisations in Wales. Services are reviewed against a range of published standards, policies, guidance and regulations. It registers independent services and has powers to take enforcement action in these matters. It is the Local Supervisory Authority (LSA) for the statutory supervision of midwives. It also has inspection and enforcement powers for the Ionising Radiation (Medical Exposure) Regulations which stem from the Health and Safety at Work etc Act 1974.

In addition, there are 9 professional regulatory bodies that ensure standards are maintained and action taken when they are not met. For example, Doctors by the General Medical Council (GMC), Dentists by the General Dental Council and Nurses by the Nursing and Midwifery Council. Other legislation applies to cases of clinical misconduct including manslaughter/culpable homicide or offences under the Medical (Professional Performance) Act 1995, under which the GMC operates.

HSE does not, in general, investigate matters of clinical judgement or matters related to the quality of care. From 1st April 2015 very few new incidents causing harm to hospital patients or social care service users in England will fall to HSE to investigate as the Care Quality Commission (CQC) will be a more appropriate regulator. CQC will deal with the major non-clinical risks to patients such as trips and falls, scalding, electrical safety etc. HSE will continue to be the health and safety regulator for workers in health and social care in England.

The current position with patient and service user incidents will remain unchanged in Scotland and Wales.

All incidents continue to be reportable to HSE under RIDDOR. HSE will follow its published incident selection criteria when deciding whether to investigate or, in the case of incidents in England, will forward reports to CQC for consideration.

As has been the case from 1 April 2011, HSE will follow its 'Guidance for FOD (and associated situational examples) in responding to (non-construction) public safety incidents where Section 3 of the HSW Act 1974 applies' but RIDDOR does not require reporting.

It will also follow this guidance for RIDDOR reportable incidents with respect to initial enquiries, reviewing investigations and recording decisions for incidents harming members of the public.

Road traffic incidents

HSE takes the lead on incidents involving work vehicles engaged in specific work activities on the public highway.

Otherwise, road traffic law is enforced by the police and others, for example the highways authorities and traffic commissioners. The police will, in most cases, take the lead in the investigation of road traffic incidents on the public highway. Incidents may, however, be referred to HSE where the police suspect that serious safety management failure was a significant contributory factor. The Association of Chief Police Officers (ACPO) has recently adopted additional guidance, developed in collaboration with DfT and HSE, to help identify such incidents.

Further guidance is set out in OM/2009/02 - 'HSE's role in the investigation of work-related road accidents and advice on responding to enquiries on managing work-related road safety'.

Police vehicles

The Independent Police Complaints Commission (IPCC) is carrying out a study of incidents involving police vehicles in order to identify lessons that can be learned in relation to policy and practice. The role of HSE in the investigation of police road traffic accidents will be discussed with IPCC and other police bodies as part of the process of revising the HSE-Police Inspection Agreement. Inspectors should inform the Public Services Sector (Defence Fire, Police and Prisons Unit) if the police or IPCC contacts them in relation to an accident involving a police vehicle

Deaths in custody

In prisons, probation hostels, immigration detention centres and the courts (where the prisoner or detainee was under escort managed by the relevant service), HSE will only lead on investigations of deaths and harm to prisoners when the incident arises out of a work activity, for example work a prison inmate was doing, a transport accident, or due to the structure or fabric of the building.

The Prison and Probation Ombudsman (PPO) and the Independent Police Complaints Commission (IPCC) will deal with deaths or serious harm from self-harm by prisoners (including failed suicide attempts) or attacks by other prisoners. The PPO's inquiry discharges the state's duty to conduct a proper investigation into the death or near death of prisoners required under Article 2 of the European Convention on Human Rights (ECHR) which is set out in Schedule 1 of the Human Rights Act (HRA). Such inquiries are sometimes known as 'Middleton Inquiries'.

Self-harm / attacks that occur in police cells in England and Wales, are taken by the Independent Police Complaints Commission (IPCC). HSE has a protocol with the IPCC that sets this out.

Self-harm and attacks that happen in Ministry of Defence (MoD) facilities, for example military detention quarters will normally be dealt with by the police.

The situation is unclear for self-harm and attacks in facilities operated by Customs. It is understood that the PPO does have a role, but there is yet to be formal agreement on this.

In cases of uncertainty Inspectors should contact the Public Services Sector.

Passenger aviation health issues

Enforcement responsibilities for health and safety on board aircraft are divided between HSE and the UK Civil Aviation Authority (CAA). Details of responsibilities are explained in a Memorandum of Understanding between HSE and CAA. Annex 8 in particular explains responsibilities for occupational health and safety of flight and cabin crew.

As a result of concerns about passenger health and safety issues, the Aviation Health Unit (AHU) was formed on 1 December 2003. Based at Gatwick within the Civil Aviation Authority's (CAA's) Medical Division, its main role is to advise government, through the Aviation Health Working Group (AHWG), on passenger and crew health issues. The Department for Transport (DfT) retains responsibility for any policy changes arising from health recommendations. The AHWG is an interdepartmental organisation, chaired by the DfT, with representatives from the CAA, Health and Safety Executive and the Department of Health. It meets every 2 months to discuss issues relevant to aviation health and was instrumental in the decision to form the AHU.

The CAA has certain responsibilities for flight and cabin crew occupational health and safety provision under the European Civil Aviation (Working Time) Regulations 2004 and has published CAP757 Occupational Health and Safety on-board Aircraft - Guidance on Good Practice, to provide UK airlines with advice on achieving compliance. )

Inland waterways

There is a range of other bodies that inspect for example Maritime and Coastguard Agency, Environment Agency/Scottish Environment Protection Agency, British Waterways, local authorities, etc. The roles and responsibilities of the various organisations with responsibility for safety issues are set out in a Department for Transport report "Inland Water Safety - Final report of scoping study".

A Memorandum of Understanding (PDF) between HSE, the Maritime and Coastguard Agency (MCA) and Marine Accident Investigation Branch (MAIB) sets out the legislation applicable, accident investigation and enforcement arrangements at the water margin. MAIB has the power to investigate accidents to boats in inland waterways and the people on them. MCA is responsible for enforcing the safety of boats used in navigation, including people on them, and the occupational health and safety of the crew.

Large reservoirs

Where reservoirs fall within the definition of 'large raised reservoir', HSE accepts that the integrity of the reservoir structure is assured through the provisions of the Reservoirs Act 1975.

The Reservoirs Act 1975 places a duty on local authorities to maintain a register of large raised reservoirs which can contain more than 25 000m3 of water above the natural level of any part of the land adjoining the reservoir. The Secretary of State appoints specialist engineers to panels set up under the Act. Panel Engineers are required to advise the undertakers on any aspect of the behaviour of the reservoir that might affect safety.

Planning matters

HSE will continue to enforce in respect of any major hazard sites subject to planning controls, but will not involve itself in matters subject to local planning authorities or public inquiries.

HSE will continue to enforce and provide advice to planning authorities in respect of any developments at or within the vicinity of major hazard sites subject to planning controls.

Fencing of quarries

The Mines and Quarries Act 1954 (MQA) s.151 concerns the fencing of all quarries whether in the course of being worked or not. Section 151(2)(c) deems a quarry to be a statutory nuisance under the Environmental Protection Act 1990 if: (1) it is not provided with an efficient and properly maintained barrier so designed and constructed as to prevent any person from accidentally falling into the quarry; and (2) by reason of its accessibility from a highway or place of public resort constitutes a danger to members of the public. MQA s.151 is not a relevant statutory provision under HSWA. However, HSE will continue to enforce Regulation 16 of the Quarries Regulations 1999, concerning the provision and maintenance of barriers, at active quarries.

Where a public body (for example a local authority) fails to discharge its statutory duties or where the consequence of its decision-making process is alleged to have resulted in risks arising

General duties

A public body's undertaking (such as a local authority) will be determined by the scope of its functions as set by statute or other terms of reference. Such functions include road gritting, the provision of roads and signage, setting speed limits and managing social services' child protection measures.

HSWA does not give HSE the authority to oversee such public bodies in all respects. Their decisions and judgments on policy, strategy, prioritisation of work and allocation of resource are generally likely to fall to Parliament, ministers or others more appropriately placed than HSE to consider and so would tend to be a lower priority for HSE.

In some cases, there may be statutory arrangements which provide another body with appropriate authority and suitable powers to oversee the public body and safeguard against the risk in question. In line with HSE's policy on section 3, those arrangements may also be relevant when deciding whether HSE is best placed to consider the actions of a public body.

Regulatory bodies

HSE's role under HSWA is limited to consideration of what those bodies do to the extent it exposes others to risks to their health and safety. HSE is not responsible for investigating whether or not regulatory bodies have carried out their statutory functions. As with other types of public body, the scope and extent of a regulator's powers and remit, and its precise role and involvement in a particular matter, will be relevant when deciding whether a risk could be said to have arisen from the conduct of the regulator's undertaking.

When deciding upon the priority of an issue factors that might be relevant to any further consideration by HSE may include:-

  • the duties placed by health and safety legislation on others who would be better placed than the regulator to control the risk,
  • Evidence of specific action taken by the regulator,
  • A failure by a regulator to adopt appropriate standards when it was reasonably open to it to do so and
  • any sound evidence of a serious breach by the regulator of its own policies or standards.

The focus should be the regulator's conduct of its own undertaking and the risks to health and safety that arise from this. Therefore greater priority should be given where the way that the body conducts its undertaking has created a risk or increased or aggravated an existing risk; rather than where the regulator has failed to eliminate or reduce the risks from others whom it regulates.

Where the risk arises from natural features (unless a work activity is taking place) for example cliff edge, lake, river, stream, falling trees, falling rocks (for example Cheddar Gorge)

When people enjoy the countryside or other open spaces they owe a duty to themselves and their dependents to take proper care. Save in special circumstances for example managed landscapes such as parks, it is not desirable that access be restricted or that other measures be taken that diminishes the amenity from fear that an accident may result in prosecution.

Hazardous leisure pursuits for example bungee jumping, water sports

Responsible risk-taking should be regarded as normal, and we should not discourage members of the public from undertaking certain activities solely on the grounds that there is an element of risk. Excessive paternalism and concern with safety may lead to infringements of personal rights. Those who are competent to judge the risk to themselves should be free to make their own decisions so long as they do not threaten the safety of others. The nature of these pursuits is such that, where there is an accident, a fault on the part of an employer cannot be presumed.

Buildings and other structures*

In addition to the duty on an employer in respect of their employees, section 4 of the HSWA, and certain health and safety regulations, impose duties for the protection of certain classes of persons in relation to the condition of premises. Where persons outside that protection are exposed to risks arising out of the condition of buildings or other structures, HSE inspectors will not ordinarily consider an investigation save in cases where death or serious injury has occurred and they are provided with a sufficient indication that a breach of section 3 was the probable cause or significant contributory factor. In many cases, local authorities are particularly well placed to act because of their specific powers under the Building Safety Act and equivalent devolved legislation to deal with defective premises, buildings and structures.

Consumer safety issues*

HSE will not ordinarily investigate cases relating to the safety of consumer goods in cases where Part II of the Consumer Protection Act 1987 provides an adequate penalty.

* NB - A letter from the Secretary of State to HSC dated 7 October 1975 (the 'Foot letter') said we were not responsible for the structural safety of buildings or the safety of products sold to the public and the administration and enforcement of consumer protection legislation.

Agreements with other regulatory authorities

HSE has agreed with a number of other regulatory authorities the approach to be taken when considering action in respect of incidents relevant to certain sectors. These agreements are generally set out in Memoranda of Understanding (MoUs) and Agency Agreements. The agreements contain much useful information and guidance to support the section 3 policy, but they should not be used to make decisions as to whether or not to investigate any particular incident. Such decisions should be made with regard to Section 3,HSWAct: Policy and these instructions.

Further information for inspectors

Further advice

We hope we have answered all your questions about enforcement of section 3 of the Health and Safety at Work Act. If you are still unsure, please contact your relevant Operational Directorate. You will find Directorates by sector.

HSE’s policy on Section 3

The purposes of the Health and Safety at Work etc Act 1974 (the HSW Act) include protecting people other than those at work from risks to their health and safety arising out of or in connection with the activities of people at work.

Section 3 of the HSW Act places general duties on employers and the self-employed towards people other than their employees.

Enforcing section 3

Since the scope of section 3 is very broad, HSE has adopted this policy to help enforcing authorities exercise discretion when determining action, including selecting incidents for investigation where a breach of section 3 is suspected. It will also help HSE staff to apply the principles set out in HSE's Enforcement Policy Statement consistently, when deciding which incidents to prioritise within the resources available.

Arrangements for enforcing section 3 need to take account of HSE's priorities, as set out in our strategy, while continuing to meet the HSW Act section 18 duty to make adequate arrangements for enforcing the relevant statutory provisions.

HSE has decided that:

  • enforcing section 3 in areas key to our mission (for example in major and high hazards including construction) remains a high priority. HSE will continue to address the most serious risks to the public's health and safety from work activities, using its expertise to best effect and taking into account the regulatory responsibilities of others
  • HSE's general approach to public safety is set out in the Strategy and reflected in priority programmes and incident selection procedures
  • HSE and other enforcing authorities will take account of HSE's priorities and, generally, give less priority to the enforcement of section 3 in areas outside these priorities

Working with other regulators

There are many situations where work activities that may give rise to risks to health and safety are regulated by other authorities using legislation that may address circumstances which are also relevant to health and safety at work issues.

  • HSE's policy, in accordance with the Regulators Compliance Code and the regulatory principles required under the Legislative and Regulatory Reform Act (2006), is to ensure that, wherever practicable, enforcement action by the health and safety enforcing authorities is effectively co-ordinated with that of other, relevant enforcing authorities to minimise unnecessary overlaps and time delays

However, initial enquiries, or information from other sources, may indicate that a breach of section 3 was or is the probable cause of, or a significant contributory factor to, the injury or risk complained of. In such circumstances, HSE and other enforcing authorities should generally consider investigating if:

  • there was or is a high level of risk
  • enforcing authorities need to act or investigate in the interests of justice

Deciding which authority will lead an investigation

There may be, however, a relevant health and safety interest in some aspects of a work activity covered by specific legislation. HSE seeks to agree with other authorities who should take the lead on an investigation (to avoid unnecessary overlaps and time delays) and, where there may be a need to act alongside each other, which activities are most appropriately dealt with by each authority.

HSE expects enforcing authorities to consider the following principles when deciding whether it is suitable for them to take the lead on an investigation:

  • Effectiveness: Which authority is best equipped, including appropriate powers, to investigate the alleged risks?
  • Capability: is the other body capable of ensuring public safety? Does it have the enforcement powers necessary to do so?
  • Health and safety expertise: Which body knows most about the risks concerned and the effective control measures?
  • Economy: Is either body already inspecting/visiting the premises or activity in question? Can duplicate visits be avoided?
  • Efficiency: Is health and safety enforcing authority involvement a good use of resources when considered against the scale of risk or level of public concern?
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Updated 2025-07-04