Supervision, the swimming pool, and the law

ARTICLE

Some swimming pools in the UK require constant poolside supervision by competent persons to ensure the safety of swimmers. Other swimming pools require supervision that is not provided by poolside lifeguards or no supervision at all. There is no primary legislation that specifically covers swimming pools in the UK, but there is a wealth of common law which requires the supervision of swimming pools by those who occupy and run commercial pools. Most pools that require the exchange of money for access (whether by the sale of an admission fee, membership, or otherwise) will require supervision.

Residential and private pools used for non-commercial (domestic) purposes are not included in the HSE guidance and will not require constant poolside supervision unless they provide commercial activities. Where a residential or private pool is utilised for commercial activities, then the content of this article should be read as applicable to those activities, and the same process of consideration and management of your supervision will apply. The requirements applying to pools used for non-commercial purposes will be dealt with in a separate article. This article does not cover the supervision rules applying to specialist pool activities or features.

When reading any guidance which applies to a swimming pool in the UK, it is important to remember that the country is separated into 3 separate legal jurisdictions: England & Wales, Scotland, and Northern Ireland. In simple terms, this means they pass their own legislation, have their own court system with its own rules, and the enforcement of health and safety is by different authorities with different powers. The UK Parliament in Westminster has also devolved some responsibilities to the administrations of Wales, Scotland, and Northern Ireland. In most cases, you will find that the standards, guidance, and practice are similar. This article will specifically highlight any areas which differ and how it differs by providing clarity on the correct rules and guidance to apply.

(a) The HSE, local authorities, and the Police enforce criminal health and safety in Great Britain (England, Scotland, Wales). Any guidance produced by the HSE applies to these jurisdictions only, the main document for supervision being HSG179:2018 (V4). The European guidance produced by CEN applies and will continue to post-Brexit, the main document for supervision being EN 15288-2:2018. The Health and Safety at Work Act (HSWA) 1974 and the secondary legislation created under it applies to these jurisdictions.

(b) The HSENI and the Police look after criminal health and safety enforcement in Northern Ireland. There is no equivalent of HSG179 in Northern Ireland and whilst useful, it does not apply. The HSENI’s guidance is set out online on NI Direct.  The European guidance EN 15288-2:2018 does apply. The Health and Safety at Work (Northern Ireland) Order 1978 sets out the equivalent responsibilities in Northern Ireland albeit with some small differences. 

(c) The majority of accidents in swimming pools result in personal injury and do not have criminal health and safety repercussions. Those accidents that result will typically follow the law of the jurisdiction in which the accident occurred; that being England & Wales, Scotland, or Northern Ireland. Typically, claims can be brought under occupiers’ liability (statute), common law negligence, or less commonly in the contract. Each jurisdiction has its own Occupiers Liability Act with some small differences between them. In England and Wales, lawful visitors are covered by the OLA 1957 and trespassers by OLA 1984. In Scotland, the OL (Scotland) Act 1960 applies. In Northern Ireland, the OLA (Northern Ireland) 1957 and OL (Northern Ireland) Order 1987 apply.

It is important to remember that the HSE is responsible for enforcing criminal health and safety laws, and the focus of their guidance is to assist in meeting the criminal standard of care. There is always a risk that premising a health and safety system on criminal law and the guidance aimed at meeting it will leave the operator vulnerable to personal injury, breach of statutory duty, or breach of contract claims where the lower civil standard of care must be met. It is my view that a prudent operator should seek to attain a standard of operation which is proportionate to the risk and predicated on safety performance rather than simply (criminal) compliance.

 

What is supervision?

Supervision consists of three elements: (a) the ability to observe users within the line of sight, (b) the ability to provide early intervention to prevent harm to users (c) the proximity to intervene immediately to prevent further harm where harm is caused to the user.

(a) Observation can be defined as the act of maintaining surveillance over activities within the line of sight. The ability to observe users of a swimming pool could be provided by a lifeguard on poolside, a lifeguard on poolside via the aid of a mirror or CCTV screen, an operator via CCTV, an automated drowning detection systems (computer vision or computer detection) or a combination of those methods.

(b) Early intervention to prevent harm can be defined as action taken to prevent the perceived likelihood of injury or ill-health occurring to another. Harm may be physical or psychological and momentary (acute) through to lifelong (chronic). Liability is more likely to arise from harm where it can be supported by medical evidence (typically where it is a recognised medical condition). The ability to provide early intervention to prevent harm to users can be provided by a lifeguard on poolside or in the water (or equivalent) or supervising responsible adult. There is no means (including technological) used in swimming pools to alert a pool user to the danger posed by the user’s action, the risk presented to them by another’s action, or an unsafe condition.

(c) Intervention taken by a lifeguard (or equivalent) to prevent further harm can be defined as action taken in response to injury or ill-health having occurred to another. The ability to provide intervention to prevent further harm to the user can be provided by alarm systems (including computer vision DDS), rescue and recovery from danger to safety, provision of CPR, first aid, oxygen therapy, use of an AED, medical care from a licenced practitioner (various), post-incident counselling, and ongoing treatment.  

In the guidance produced by the HSE (2018, v4) Health and safety in swimming pools, you will see the phrase “constant poolside supervision” used. Paragraph 79 states that:

Constant poolside supervision (watching the water) by lifeguards provides the best assurance of pool users’ safety.

 

When do I need to supervise a swimming pool?

See "Do I need to provide constant poolside supervision for my swimming pool."

 

What supervision do I need to provide?

Once you have decided whether your pool requires constant poolside supervision, you can determine what types of supervision you intend to put in place. Where you have decided that constant poolside supervision is required, you will need to consider:

(a) Providing allocated positions and zones of responsibility for your lifeguards to ensure the supervision provided is suitable. Conducting an effective Lifeguard Zone Visibility Test (LZVT) may assist management identify the appropriate lifeguard positions and zones of responsibility (Paragraphs 80-89, HSG179, 2018). Guidance is also set out by the RLSS (2018).

(b) Providing the number of lifeguards necessary to ensure the standard of supervision is sufficient.

(c) Establish the duration which your lifeguards can maintain a sufficient standard of supervision, taking account of factors which contribute to the fatigue and distraction of your lifeguards in providing supervision. Those factors may include (HSG179, 93-101):

(i) Adverse environmental conditions including high noise, heat, or humidity levels; working whilst in direct sunlight; extensive glare, reflection, or turbulence issues.

(ii) Sustained high pool user loads, poor behaviour, or poor parental supervision.

(d) Provide the rules for your pool and establish how these will be enforced to ensure that supervision is suitable and sufficient.

(e) Provide competent lifeguards to provide supervision and any equipment they require to ensure the standard of supervision provided is sufficient.

(f) Ensure that the supervision arrangements you have put in place are and remain effective (see §5).

Where you have decided that constant poolside supervision is not required, you will need to consider (Paragraph 112-115):

(a) Providing poolside checks at agreed intervals.  

(b) Providing pool users or staff with means of summoning emergency assistance where a pool user is in difficulty, including in the case of lone swimmers or single parents with a very young child (who may not be able to summon assistance or recognise the danger) (Paragraph 113, HSG179, 2018).

(c) Providing technology, such as CCTV, DDS wearables, computer detection, or computer vision, to support the identification of a user in distress and ensure the appropriate behaviour of pool users.

(d) Controlling access and egress, especially where supervision is provided only at specified times.

(e) Ensure that competent staff are immediately available to respond in the event a pool user is in distress, including if they require recovery from the water.  

In addition to §15 and §16, all pools will need to provide a range of other control measures which are not directed at supervision but mitigate or eliminate risk arising wholly or partly from factors other than supervision, such as (Paragraph 112-115):

(a) Providing adequate safety signage to warn users of the dangers, pool depth, pool features, the nature of the supervision arrangements provided, the means of summoning emergency assistance, the numbers of people who can use the pool at any one time, and the pool rules.

(b) Provide suitable and well-maintained rescue equipment which is available on the poolside for use by users in the case of emergency.

 

Implementation of your supervision arrangements

Once you have decided on the supervision arrangements for your pool, you will then need to take steps to implement them, which may include:

(a) Preparing a risk assessment (general, sessions, LZVT etc.) setting out how your arrangements mitigate the risks presented by an unsupervised, inappropriately supervised, or inadequately supervised pool.

(b) Preparing processes (e.g. NOP/EAP) which provide clear guidance to your team on who is accountable for supervision and the responsibility of each of your team members involved in the provision of pool supervision.

(c) Ensuring each member of your team responsible for the provision of pool supervision is competent in their specific responsibilities.

(d) Testing your supervision arrangements, including any technology used, to ensure that they work in expected real-world conditions (Paragraph 114-115, HSG179, 2018).

(e) Establishing clear lines of reporting, escalation, and prioritisation for issues which arise from the provision of pool supervision so that the safety of pool users is protected whilst these issues are resolved.

Common tools which you may develop to support your implementation:

(a) A risk assessment template to capture and record the risk assessment of your pool supervision arrangements.

(b) A section detailing your supervision arrangements in your Normal Operating Procedure (NOP) or equivalent Occupational Health and Safety Management System (OHSMS). This may include situations relevant to supervision such as:

(i) Access controls to the pool.

(ii) Maintaining effective supervision whilst lifeguards rotate, change over sessions, or communicating with customers. Guidance for Great Britain is set out at Paragraphs 93-101 (HSG179, 2018) and in the manuals of most lifeguard qualification providers.

(iii) A reporting, escalation, and prioritisation process to inform the team the importance of reporting concerns and how to report them in situations where they believe the supervision arrangements are no longer effective or fail to be followed. The responsibilities of the accountable person in resolving the concern and communicating the result should be clearly set out.

(c) A section detailing your supervision arrangements in cases where your supervision controls have failed in your Emergency Action Plan or equivalent Occupational Health and Safety Management System (OHSMS). This may include situations relevant to supervision such as:

(i) Overcrowding, increasing the obstructions, resulting from more pool users, of the bottom/edges of the pool. A condition not covered by the operator visibility risk assessment, leaving parts of the pool inadequately supervised.

(ii) Boisterous behaviour and asking customers to leave where a lifeguard may be required to leave, for an extended period, the vantage point (lifeguard position) to a new position not covered by the operator visibility risk assessment leaving parts of the pool inadequately supervised.

(iii) Declining water clarity (water pollution, coloured dye etc.) resulting in conditions which are not covered by the operator visibility risk assessment, leaving parts of the pool inadequately supervised.

(iv) Material change to natural or artificial lighting since the last risk assessment (bulb failure, power cut, electronic blind failure etc.) resulting in conditions which are not covered by the operator visibility risk assessment, leaving parts of the pool inadequately supervised.

(v) Intervening to prevent further harm upon discovering a casualty unconscious or in difficulty whilst using the pool.

(d) A training, induction, or refresher programme to ensure lifeguards, and those who train them, are and remain competent to provide supervision of the pool (Paragraph 126-147, HSG179, 2018).

 

Early indicators of the need to make improvements to your existing supervision arrangements

Implementing your processes to manage supervision does not discharge your legal duties in criminal or civil proceedings alone. As the duty holder, you must ensure you react and respond appropriately where you are “put on notice” by your accident data, concerns from your team or customers, new developments in the guidance or understanding of effective pool supervision. The concept of being put on notice was upheld as valid in law by the UK Supreme Court in the recent (non-pool related) case of Baker v Quantum [2011]. The judgment in Baker is specific to its facts. However, all lower courts are likely to apply the same reasoning, and you would be advised to treat it as now part of the common law to which the duty holder for pool supervision is required to meet in the same way as any law in an Act or Regulation.

The Court also recognised that an employer with “special knowledge” of a new or emerging risk would likely be required to meet that higher standard of performance afforded by its special knowledge. The Court accepted in Baker that upon being put on notice that your supervision controls may require improvement, a duty holder should be allowed a “reasonable period” to implement those controls. This period is entirely at the trial judge’s discretion, and you should act promptly to assess what proportionate additional steps you should now take to meet your legal obligations.

In Baker, the employer argued that it was not required to “seek out” guidance that applied to the risks in its business and that it was not aware of the British Standard on which part of the issues before the Court turned. The Court did not agree. The Court made clear that provided the guidance was available and accessible, the court could draw support from guidance in reaching its decision on whether the standard of care has been breached in a particular sector or application. This is irrespective of whether the employer actually knew of the guidance or not.

Against that backdrop, common warning signs that your pool supervision requires improvement have included:

…for pools with constant lifeguard supervision:

(a) Lifeguards talking or otherwise distracted. (e.g. R v Cotterill and Leek [2009]).

(b) Inadequate lifeguard numbers and poor visibility (e.g. R v The London Borough of Havering [2003]).

(c) Failure to pass on information relevant to supervision and provide effective in-water supervision by instructors (e.g. R v David Lloyd Leisure Limited [2016]).

(d) Failure to ask a child to return to their supervising parent as set out in the NOP. (e.g. R v Upper Bay Limited [2008]).

(e) Identification, but lack of recognition, of a when pool user is in danger (Mr N Epstein v The Royal Borough of Windsor and Maidenhead [2007]).

…for pools without constant poolside supervision:

(f) Infrequent or inadequate poolside checks (e.g. R v Britannia Adelphi Hotel Ltd [2010]).

(g) Poolside CCTV camera provided a poor quality image which delayed detection (e.g. R v Virgin Active Health Clubs Limited [2014]).

(h) Failure to agree adequate supervision coverage when letting the pool to a hirer (e.g. Maya Kantengule [2017]).

 

References (14)

_{CEN (2018). Swimming pools for public use. Safety requirements for operation. (EN 15288-2) Available at: https://shop.bsigroup.com/ProductDetail/?pid=000000000030360257 accessed 11th November 2020.}

_{Health and Safety at Work etc. Act 1974. Available at: https://www.legislation.gov.uk/ukpga/1974/37/contents}

_{HSE (2018). Health and Safety in Swimming Pools (HSG179, version 4). Available at: https://www.hse.gov.uk/pubns/books/hsg179.htm accessed 11th November 2020.}

 

_{RLSS UK (2018). Conducting a Lifeguard Zone Visibility Test. Available at: https://www.rlss.org.uk/hsg179 accessed 11th November 2020.}

_{RLSS UK (2018). Maximum poolside working times and lifeguard rotation. Available at: https://www.rlss.org.uk/hsg179 accessed 11th November 2020.} 

_{The Health and Safety at Work (Northern Ireland) Order 1978. Available at: https://www.legislation.gov.uk/nisi/1978/1039/contents}

 

Citation: Jacklin, D. 2020. Supervision and the swimming pool. Water Incident Research Hub, 5 November.