Is your pool one of the following options?

• A stand-alone paddling pool used solely for domestic use
• A stand-alone spa pool
• A pool used solely for domestic purposes
• A body of open water that exists on your land and which is used solely for domestic purposes 
• A stretch of a river that exists on your property and which is used solely for domestic purposes
• A segregated area of the sea that exists on your property and which is used solely for domestic purposes. 

You are not required to provide constant supervision or constant poolside supervision for your swimming pool.

You must:

• Provide a disclaimer that the pool is used at a person's own risk and excluding liability for personal injury or property damage except in circumstances where it arises from the occupier's negligence
• Provide warnings of any special risks not readily apparent to pool users
• Take steps to guard against the risk to children who may not take the care an adult would regarding the risk(s) contained in any notice or warning.

Your next steps must include:

• Ensure that you take all reasonably practicable measures to ensure that persons are not exposed to a risk to their health and safety resulting from any other aspect of the swimming pool's condition, maintenance, or operation.

Proceed to Question 2. 

Do any of the following options apply to your pool? 

• Unsupervised lone swimming is permitted. 
• Unrestricted access ability when the pool is not in use or is in an unsafe condition, such as where any of the following are present:

- Sharp edges

- Unsafe lighting

- Unsafe colour contrasting or patterning on the pool tank or surround

- Unsafe water clarity or hygiene

- Entrapment or entanglement risk

- Features or equipment of unsafe structural integrity

• No signage to warn pool users of material risks to their health and safety such as:

- No lone swimming signage.

- No lifeguard signage. 

- No water depth markings. 

- No warning as to abrupt changes in water depth. 

- No pool rules signage. 

- Diving, jumping and other acrobatics are permitted. 

• No admission policy displayed at the pool entrance, in the changing rooms, or on poolside. 
• No ability to enforce and restrict access to certain user groups (children, vulnerable, members, non-members etc.). 
• No ability to monitor the maximum pool user load and ensure it is not exceeded. 

You must not allow any person to use the swimming pool unless you can demonstrate taking all reasonably practicable steps to ensure a pool user is not exposed to a risk to their health and safety arising from the access arrangements you have in place for the swimming pool.

Relevant controls include:

• prohibiting lone swimming and implementing controls to ensure no pool user is alone and unsupervised whilst using the pool
• providing a pool, features, and equipment of safe design which is properly maintained 
• providing additional, re-locating, or updating existing signage 
• providing additional or modifying existing manual or technological access controls to prevent access to lone swimmers, unauthorized user groups, and when the pool is at or is close to reaching the maximum pool user load. 
• the display of the admissions policy at the pool entrance, changing rooms, and on poolside
• the provision of some programmed sessions with constant poolside supervision for groups normally unauthorized to use the swimming pool at these times with these additional controls in place. 
• using means (manual or technological) to monitor the number of pool users using the swimming pool
• adopting a periodic programme of planned and unannounced testing of implemented arrangements to assess effectiveness. 

Next steps:

• ensure no person uses the swimming pool, or
• implement the required controls from the list above to ensure that none of the items in Step 2 is absent.

Proceed to Question 3. 

Do any of the following apply to your pool? 

• You have the means in place to ensure a competent person is notified, in a timely manner, of any pool user who enters the swimming pool water or pool surround at any time whilst the swimming pool is in use
• You have the means in place to ensure a competent person can provide constant remote observation of any pool user who enters the swimming pool water or pool surround at any time whilst the swimming pool is in use

You must provide constant poolside supervision unless you can demonstrate taking all reasonably practicable steps to identify any pool user who enters the swimming pool at any time it is in use. 

Relevant controls include:

• Work instruction for the reception desk to notify the competent person of any person seeking to use the pool.

• Competent person notification triggered by a turnstile or security gate.

• Competent person notification triggered by a gate or water disturbance alarm.

• Remote observation of CCTV monitors covering the whole pool area and bottom at all times whilst the pool is in use. 

• Notification or remote observation is provided by an automated drowning detection system covering the whole pool area and bottom, which is monitored at all times whilst the pool is in use

• Periodic programme of planned and unannounced testing of implemented arrangements to assess effectiveness. 

Next steps:

• Provide constant poolside supervision or

• Implement the required controls from the list above to ensure that none of the items in Step 3 is absent.

Proceed to Question 4. 

Do your pool arrangements not include any of the following: 

• An instruction (signage or otherwise) for pool users to summon assistance where they recognise a pool user is or, maybe, in difficulty
• Means (manual or technological) by which a competent person is notified in a timely manner that a pool user has recognised a person in, or maybe in, difficulty (i.e. audible or visual alarms)
• Means by which a competent person may recognise, using remote observation, a pool user in difficulty at any time whilst the swimming pool is in use

You must provide constant poolside supervision unless you can demonstrate taking all reasonably practicable steps to recognise a pool user is in difficulty in a timely manner by alternative means.

Relevant controls include:

• provision of signage or audible instructions for pool users to summon assistance by the provided means if they recognise a pool user is or likely is, in danger
• provision of persons who are competent in the recognition of pool users in difficulty to monitor the automated DDS, CCTV systems, or perform poolside checks
• provision of a programme of physical poolside checks at appropriate intervals at all times whilst the pool is in use

Next steps:

Proceed to Question 5. 

 Are any of the following absent:

• Person(s) competent in the rescue and recovery of pool users to poolside are immediately available to attend poolside at any time whilst the pool is in use
  

• Person(s) competent to make a call to summon assistance from the emergency services are available at any time whilst the pool is in use.

You must provide constant poolside supervision unless you can demonstrate taking all reasonably practicable steps to rescue and recover a pool user from danger in a timely manner by alternative means. Relevant controls include:

• Providing persons competent in the rescue and recovery of pool users from the pool at all times whilst the pool is in use
• Providing persons competent in first aid and basic life support who are immediately available at all times whilst the pool is in use
• Providing persons competent in the rescue and recovery of pool users from the pool are immediately available to attend poolside at all times whilst the pool is in use.

Next steps:

• Provide constant poolside supervision or
• Implement the required controls from the list above to ensure that none of the items in Step 5 is absent.

You are not required to provide constant poolside supervision as you have adopted all reasonably practicable measures to ensure persons are not exposed to a risk to their health and safety resulting from the constant supervision arrangements you have in place.

Your next steps include:

• ensuring that you take all reasonably practicable measures to ensure persons are not exposed to a risk to their health and safety resulting from any other aspect of the condition, maintenance, or operation of the swimming pool.

Context

The most onerous duty and the best starting point is that an employer must take reasonably practicable steps not to expose persons other than their employees to a risk to their health and safety resulting from the condition or operation of the swimming pool (s.3(1) HSWA 1974). For the purpose of this post, "constant poolside supervision" means a lifeguard on the poolside and "constant supervision" can include a lifeguard or supervision by remote means. There is no category of swimming pool used for commercial purposes which does not require constant supervision. 

In circumstances where constant poolside supervision is not provided, an operator may expose a non-employee to a risk to their health and safety by the following ("Risks 1-7"): 

1. Permitting a person to use a swimming pool, feature, or equipment when it is in an unsafe condition 
2. Failing to prevent persons from using a swimming pool, feature, or equipment when it is in an unsafe condition
3. Failing to observe persons who access and use the swimming pool at all times whilst it is in use
4. Failure to intervene and stop prohibited acts, omissions, or unauthorised use once identified
5. Failure to respond to warnings that a person is or likely is in danger
6. Failing to recognise pool users who are in difficulty at any time whilst the pool is in use in a timely manner 
7. Failing to rescue and recover a pool user who is in difficulty at any time whilst the pool is in use in a timely manner 

Where constant poolside supervision is provided, an operator may expose non-employees to all the same risks (Risks 1-7) but the reasonably practicable measures available, how they are deployed, and their operational effectiveness may differ. The key takeaways here are: 

(i) Define (correctly) the risks you, as a pool operator, may expose your pool users to in adopting a policy decision not to provide constant poolside supervision for your swimming pool. You must mitigate the risks that result from the way you operate or maintain your facility, not the risks that exist in everyday life. You are not expected to prevent every pool user from getting out of their depth and requiring rescue. You are expected to rescue them when they do. 

(ii) Plan for expected and reasonably foreseeable misuse or deviation by pool users in response to your control measures (e.g., lack of maturity, lapse of judgement, etc.) 

(iii) Your duty as an operator is to ensure an outcome, not give it your best attempt. You must be confident, and deploy such assurance measures as auditing, inspection, test, and exercise to give you and your senior management team that confidence. You should not overly rely on a single source to provide that confidence, making appropriate use of independent and impartial advisors (internal and external). 

(iv) You must adopt and be prepared to demonstrate to the court/jury that you took all reasonably practicable measures to ensure a pool user was not exposed to a risk to their health and safety. This is irrespective of whether the pool user suffered any harm. For example, if you are a leading pool operator with a turnover in excess of £300m per annum, you are going to find it more difficult to demonstrate why an initial investment of £30,000 in a drowning detection system was unaffordable (i.e. not reasonably practicable) when your staff observing the CCTV cameras are distracted at your reception desk. You must demonstrate that you took all reasonably practicable measures irrespective of whether you were aware that the additional measures put to you existed at the time of the accident. If you adopt additional measures immediately following an incident but before your trial, this will not assist you in discharging this duty. 

(v) Good management is never onerous, costly, time-consuming, or complicated for competent persons. Few problems are incapable of effective resolution where competent persons dedicate the appropriate headspace, wider reading, consultation, and creativity of which they are capable when they focus. Focus on being clear about what you are doing, why you are doing it, and how you deliver it. If it were a case of keeping things simple, pool operators would not have been prosecuted every year for the last 20 years. Effective solutions should be simple for the team to adopt, but the process of coming up with effective solutions requires competent people to properly apply their expertise. 

The following elements of HSG179 and EN 15288-2 are not, in my view, determinative of the need to provide constant poolside supervision (albeit they may be material in increasing the likelihood that the operator has to take emergency action):

• The nature of the pool or activity (para 82) is not determinative of the need to provide constant poolside supervision. With the exception of those pools listed at Step 1, all pools irrespective of their 'nature' must satisfy the same legal requirements. 
• Pool water area/pool size (para 82) is not determinative of the need to provide constant poolside supervision. It is relevant to the number of lifeguards provided (para 92), not whether constant poolside supervision is required.
• Pool water depth or signage of water depth (HSG179, para 82 and 112; EN 15288-2, cl. 7.3.3.3) is not determinative of the need to provide constant poolside supervision. Regardless of water depth, pool users may be involved in immersion or submersion incidents. For those incidents where unconsciousness in water is induced by means other than drowning, the operator will only discharge their legal duty by identifying and recognising that the pool user is in difficulty within a timely manner. This can be achieved effectively by constant poolside supervision or remote constant supervision. Water depth is relevant to Step 5, but Step 5 does not determine the need to provide constant poolside supervision (it is relevant to rescue and recovery). 
• Abrupt changes in water depth or steep gradients (para 82 and 112) is not determinative of the need to provide constant poolside supervision. The mere presence of an abrupt change in water depth is not a failure by the operator if it complies with the requirements present at the material time the pool basin was constructed, and the operator provides a sufficient warning to pool users of the abrupt change in depth. An operator does not breach their duty in law by failing to prevent a person from traversing the abrupt change in depth and being unable to get themselves to a point of safety. An operator only breaches their legal duty where Risks 3, 5, 6, or 7 then follow. It makes no difference whether an operator fulfils Risks 3, 5, 6, or 7 by constant poolside supervision or any other means. 
• The demographic and ability of pool users (HSG179, para 82; EN 15288-2, cl. 7.3.3.3) are not determinative of the need to provide constant poolside supervision. Risks 1-7 could all be mitigated by the effective implementation of constant supervision by alternative means. Whatever the pool user's age, an operator owes the same duty to non-employees under the HSWA 1974. Age is relevant to an evaluation of civil liability under s.2 OLA 1957.
• The provision of suitable pool rescue equipment (para 112) is not determinative of the need to provide constant poolside supervision. It is relevant to whether a pool user can be rescued and recovered to the poolside in a timely manner (Step 5), but this is true irrespective of whether constant supervision is poolside or by other means. 
• Hazard signage is relevant to the operator discharging all or part of their duty to ensure non-employees are not exposed to risks to their health and safety arising from a variety of pool conditions or operation scenarios. However, signage is not determinative in that decision when it comes to the need to provide constant poolside supervision. In circumstances where the HSWA 1974 has been breached, it is unlikely that an operator will successfully be able to rely on any disclaimer, special notice, or admissions policy advertised to defend a section 2 OLA 1957 personal injury claim (on the basis of the accident arising from the operator's negligence). 
• Special activities, occasions, or equipment (inflatables, floating play equipment, etc.) (EN 15288-2, cl.7.3.3.3) all make it more likely that constant pool supervision may be needed, but is not determinative of the need to provide constant poolside supervision. It can be achieved by adopting alternative, remote means. 
• Whether alcohol is permitted or prohibited is not determinative of the need to provide constant poolside supervision. The risks arising from the consumption of alcohol on the poolside can be mitigated by alternative means. The risks arising from the presence of alcohol on the poolside (e.g. broken glass) can be mitigated by alternative means.