2. Individuals: Breach of duty of employer towards employees and non-employees/ Breach of duty of self-employed to others/ Breach of duty of employees at work/ Breach of Health and Safety regulations/ Secondary liability

Health and Safety at Work Act 1974 (section 33(1)(a) for breaches of sections 2, 3 and 7, Health and Safety at Work Act 1974 (section 33(1)(c)), Health and Safety at Work Act 1974 (sections 36 and 37(1) for breaches of sections 2 and 3 and section 33(1)(c)
Effective from: 01 February 2016


Health and safety offences are concerned with failures to manage risks to health and safety and do not require proof that the offence caused any actual harm. The offence is in creating a risk of harm.

1) Use the table below to identify an initial harm category based on the risk of harm created by the offence. The assessment of harm requires a consideration of both: – the seriousness of the harm risked (A, B or C) by the offender’s breach; and – the likelihood of that harm arising (high, medium or low).

Seriousness of harm risked

Level A

  • Death
  • Physical or mental impairment resulting in lifelong dependency on third party care for basic needs
  • Significantly reduced life expectancy

Level B

  • Physical or mental impairment, not amounting to Level A, which has a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or on their ability to return to work
  • A progressive, permanent or irreversible condition

Level C

  • All other cases not falling within Level A or Level B
High likelihood of harm Harm category 1 Harm category 2 Harm category 3
Medium likelihood of harm Harm category 2 Harm category 3 Harm category 4
Low likelihood of harm Harm category 3 Harm category 4 Harm category 4 (start towards bottom of range)

2) Next, the court must consider if the following factors apply. These two factors should be considered in the round in assigning the final harm category.

i) Whether the offence exposed a number of workers or members of the public to the risk of harm. The greater the number of people, the greater the risk of harm.

ii) Whether the offence was a significant cause of actual harm. Consider whether the offender’s breach was a significant cause* of actual harm and the extent to which other factors contributed to the harm caused. Actions of victims are unlikely to be considered contributory events for sentencing purposes. Offenders are required to protect workers or others who may be neglectful of their own safety in a way that is reasonably foreseeable.

If one or both of these factors apply the court must consider either moving up a harm category or substantially moving up within the category range at step two overleaf. If already in harm category 1 and wishing to move higher, move up from the starting point at step two overleaf. The court should not move up a harm category if actual harm was caused but to a lesser degree than the harm that was risked, as identified on the scale of seriousness above.

* A significant cause is one which more than minimally, negligibly or trivially contributed to the outcome. It does not have to be the sole or principal cause.