Is the commercial swimming pool sector regulated? YES (but not very well)!

Posted by on Wednesday, May 25, 2016 Under: Health & Safety

Whilst there is no specific legislation covering the management of commercial swimming pool water, there is plenty of general legislation that is applicable. Read on for a quick primer.

Management Responsibility
The Health and Safety at Work etc. Act 1974 (HSWA) , the Management of Health and Safety at Work Regulations1999 (MHSWR) and the Control of Substances Hazardous to Health Regulations 2002 (COSHH) impose certain statutory duties on all managers of non-domestic swimming pools. Duties under the HSWA extend to risks from infectious agents arising from work activities, ie risks to non-employees. The MHSWR provide a broad framework for controlling health and safety at work. COSHH provides a framework aimed at controlling the risks from hazardous substances including infectious agents.

Duties under the Health and Safety at Work Act 1974
It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

It shall be the duty of each person who has, to any extent, control of premises or of the means of access or egress or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access or egress available for use by persons using the premises, and any plant or substance in the premises or, provided for use there, is safe and without risks to health.

If people working under the control and direction of others are treated as self-employed for tax and national insurance purposes, they are nevertheless treated as employees for health and safety purposes. It may, therefore, be necessary to take appropriate action to protect them. If any doubt exists about who is responsible for the health and safety of a worker, this could be clarified and included in the terms of a contract. However, a legal duty under Section 3 of HSWA cannot be passed on by means of a contract and there will still be duties towards others under Section 3 of HSWA. If such workers are employed on the basis that they are responsible for their own health and safety, legal advice should be sought before doing so.

Management of Health and Safety at Work Regulations 1999
Under these Regulations the manager of a pool is required to
  • assess the risks in their workplace
  • use competent help to apply health and safety legislation
  • establish procedures to use if an employee is presented with serious and imminent danger
  • co-operate and co-ordinate health and safety if there is more than one employer in a workplace

Approved Codes of Practice
Approved Codes of Practice (ACoP) offer practical examples of good practice and how to comply with the law. If, for example, regulations use words like ‘suitable and sufficient’ or ‘reasonably practicable’, an ACoP can illustrate what this requires in particular circumstances. 

Approved Codes of Practice have a special legal status which can be expressed positively or negatively.
The Approved Code of Practice for the Management of Health and Safety at Work Regulations 1999 (L21) (now withdrawn) states: 

If you follow the advice you will be doing enough to comply with the law in respect of those specific matters on which the Code gives advice. You may use alternative methods to those set out in the Code in order to comply with the law.

The ACoP for the Workplace (Health, Safety and Welfare) Regulations 1992 (L24) states: 

This Code has been approved by the Health and Safety Commission and gives advice on how to comply with the law. This Code has a special legal status. If you are prosecuted for breach of health and safety law, and it is proved that you have not followed the relevant provisions of the Code, a court will find you at fault, unless you can show that you have complied with the law in some other way.

However, a failure on the part of any person to observe the provisions contained in an ACoP does not, of itself, render that person liable to any criminal or civil proceedings. 

In criminal proceedings the provisions of a relevant ACoP are admissible in evidence, and a failure to observe them constitutes proof of the breach of duty or contravention of the legal duty in question, unless the accused satisfies the court that he complied with the requirement of the law in some other equally effective manner. 

In civil proceedings it is likely that a failure to observe the provisions of an ACoP could constitute prima facie evidence of negligence, which would have to be rebutted by evidence to the contrary.

Guidance Notes
Guidance notes may be specific to the health and safety problems of an industry or of a particular process used in a number of industries. 

The main purposes of guidance notes are to: 
  • help people to understand what the law says including, for example, how requirements based on EC Directives fit with those under the Health and Safety at Work Act 
  • help people comply with the law 
  • give technical advice

The HSE may issue a guidance note together with an Approved Code of Practice (ACoP), or independently. Guidance notes contain practical advice and sound suggestions, and are frequently more informative than the related ACoP. The HSE aims to keep guidance up to date, because as technologies advance, workplace risks and appropriate control measures change too. 

Following guidance is not compulsory and employers are free to take other action but if they do follow guidance they will normally be doing enough to comply with the law. 

Although guidance notes have no legal standing they can be used as evidence of the state of knowledge at the time of issue.

An example of guidance, published by the HSE and relevant to the management of swimming pools is ‘HSG179 Managing Health and Safety in Swimming Pools’. This document can be downloaded, free of charge from the HSE website.

A further example of guidance, published by the Pool Water Advisory Group (PWTAG) is ‘Swimming Pool Water: Treatment and Quality Standards for Pools and Spas, which has more detailed information regarding pool water treatment than the HSG170 guidance.

Enforcement of health and safety legislation falls to two bodies, the Health and Safety Executive and Local Authorities (LAs). The HSE are responsible for enforcement with respect to designers, manufacturers and installers and for pools in premises where HSE is the enforcing authority eg. government buildings, factories. LAs are responsible for enforcement in hotels, retail outlets, and private sports and fitness clubs. 

The majority of commercial pools will be under the enforcement of Local Authorities. Both HSE and LA inspectors will expect employers to meet their legal responsibilities as explained in the COSHH ACoP and L8. Each LA will make their own arrangements for inspections and water quality monitoring. 

The enforcing authorities have the power to close a pool (Prohibition Notice) if there is an imminent risk to health. They can also require improvements (Improvement Notice) where the management of a pool is falling below legal standards.

In : Health & Safety 

Tags: legislation