Section 3 of the Health and Safety at Work, etc., Act 1974 (HSWA), in summary, requires employers to conduct their undertaking in a way which does not pose risks to the health and safety of non-employees. The aim of section 3 is to give protection to the general public and other non-employees, for example contractors. Breach of section 3 is a criminal offence and there would seem to be no reason why employers could not be prosecuted for risks associated with Covid 19.
A significant case on the scope of section 3 is RMC Roadstone Products Ltd v Jester (High Court, 1994). The facts, in outline, were that R Ltd was a company which manufactured road building materials. It engaged two contractors to replace asbestos sheets on its premises. The contractors were told to remove old asbestos sheets from the roof of a disused factory. As they were doing so, one of the contractors fell through a skylight and suffered fatal injuries. R Ltd was convicted of an offence under section 3. It appealed to the High Court.
That court allowed the appeal and overturned the conviction. It made the following points:
The prosecution had to prove three matters to establish liability under section 3, as follows:
The accused must be an employer
The activity or state of affairs giving rise to the complaint must fall within the scope of the accused’s conduct of its undertaking
There must be a risk to the health and safety of persons other than employees.
Where an employer left an independent contractor to work in a way which he saw fit, then that work would be outside the scope of the employer’s “undertaking”.
The deceased’s work in removing the asbestos sheets was outside the conduct of the company’s undertaking. He had been left to do the work in any way which he chose.