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, i.e. 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.
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.
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 (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The Approved Code of Practice for the Management of Health and Safety at Work Regulations 1999 (L21) (now withdrawn) states: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 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.
These Regulations were made under the Health and Safety at Work etc Act (HSW Act) 1974 and came into force on 28 January 1998. The Regulations apply in all premises and work situations in Great Britain subject to the HSW Act, with the exception of diving operations and below ground in a mine (there is specific legislation dealing with confined spaces in these cases). These Regulations also extend outside Great Britain in a very limited number of cases.
A confined space is a place which is substantially enclosed (though not always entirely), and where serious injury can occur from hazardous substances or conditions within the space or nearby (e.g. lack of oxygen).
Under domestic law (the Health and Safety at Work etc Act 1974) employers are responsible for ensuring the safety of their employees and others. This responsibility is reinforced by regulations.
The Confined Spaces Regulations 1997 Apply where the assessment identifies risks of serious injury from work in confined spaces.
These regulations contain the following key duties:
- avoid entry to confined spaces, e.g. by doing the work from the outside;
- if entry to a confined space is unavoidable, follow a safe system of work; and
- put in place adequate emergency arrangements before the work starts
These Regulations require employers and others to report accidents and some diseases arising out of or in connection with work to the Health and Safety Executive. For example, certain case(s) of Legionnaires’ disease are reportable under RIDDOR. Further information on RIDDOR can be found in HSE guidance or on the HSE website at http://www.riddor.gov.uk
The CDM Regulations require that health and safety is taken into account and managed throughout all stages of a project, from conception, design and planning through to site work and subsequent maintenance and repair of the structure. These regulations apply to most common building, civil engineering and engineering construction work (including demolition, dismantling and refurbishment). Clients and designers have specific duties under the regulations. Further information on health and safety during construction can be obtained from the HSE website (http://www.hse.gov.uk/construction/) where there is information on these regulations and references to relevant leaflets and guidance.
In a commercial swimming pool, it is important that there are enough competent people involved with the day-to-day operation and management of it. There should always be a supervisor (or equivalent) on-site, who has attended a course of training such as a 3-day Pool Plant Operator course and met the associated assessment criteria. In order to fulfil this requirement, there would need to be a team of people who hold this type of qualification in order to account for annual leave and sickness etc.
Further to this requirement, all people involved with the testing of swimming pool water and the cleaning and supervision of a swimming pool facility should have attended a course of training such as a 1-day Pool Plant Foundation course and met the associated assessment criteria.
If there are not enough trained and competent staff available to assist with the running of a commercial swimming pool, errors and omissions are a likely outcome.