Interpreting Section 3 of the Health and Safety at Work Act

Interpreting Section 3 of the Health and Safety at Work Act

18th October 2017

During the recent British Safety Council’s annual conference in the first week of October, the director of regulation at the UK Health and Safety Executive (HSE), David Snowball, the architect of the He4alth and Safety at Work Act (HSAW) would be “turning in his grave” if he could see the various ways in which Section 3 of the Act was being interpreted.  The comments were made during Mr. Snowball’s speech at the conference in which he discussed the changes to the regulatory landscape. 

Section 3 of the HSAW places general duties on employers and the self-employed to carry out their work in such a way as to make sure, as far as is reasonably practicable, that persons other than themselves and their employees are not exposed to dangers to their health and safety. 

The foundation for so much of the HSAW Act and subsequent legislation was laid back in 1972 in the shape of Lord Robens of Woldingham’s report on health and safety for the government of the day.   The predecessor of the HSAW Act was the brainchild of Secretary of State for Employment and Productivity, Barbara Castle who introduced an Employed Persons (Health and Safety Bill) in 1970.  However, the committee of inquiry chaired by Lord Robens was established towards the end of Harold Wilson’s first government and once the  Conservative party regained power in 1970, Castle’s Bill was given no parliamentary time and the government decided to wait for the outcome of the Robens Report which was published in 1972. 

The scope of the general duties set out in Sector 23 of the HSAW Act are so broad that the HSE has developed a policy to help enforcing authorities exercise discretion.  For Section 3 to apply, the following criteria should be met:

·         There must be a duty-holder, either an employee or a self-employed person, and

·         There must be a risk 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 risks must arise from the conduct of the duty holder’s undertakings (an undertaking means “enterprise” or “business”).

However, Section 3 does not apply to the following:

·         Welfare issues (for instance, the provision of toilets or washing facilities)

·         Nuisance or amenity issues that have no health or safety implications (for instance, unpleasant smells caused by work activities)

·         Poor workmanship, where trading standards or contractual remedies may exist, unless it has demonstrably comprised health and safety. 

Any arrangements for enforcing Section 3 need to consider the HSE’s priorities as set out in the strategy “The Health and Safety of Great Britain – Be Part of the Solution” while still continuing to meet the HSW Act Section 18 duty to make adequate arrangements for enforcing the relevant statutory provisions.