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 duty-holder - 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 duty-holder 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 - eg 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 - ie in accordance with HSE's Enforcement Policy Statement [89KB] and the Enforcement Management Model [135KB].

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 1999.