Health & safety With news that more than 120 people in the UK have contracted Legionnaires’ disease over the summer, Stephen Lemmon explains the responsibilities of employers in respect of managing the risks
Sadly, Legionnaires’ disease has been in the UK headlines again this summer. Since May, more than 120 people have contracted the condition in two separate outbreaks in Edinburgh and Stoke-on-Trent, five of whom have died.
In Edinburgh, the source of the disease has not been pinpointed but is likely to be one of three cooling towers in the south side of the city, while in Stoke a hot tub display was to blame.
On 27 July, following the Edinburgh outbreak (and a recently completed review of outbreaks in the UK over the past 10 years, showing common failings in control) the HSE issued a safety notice. This was aimed specifically at industries using cooling towers or evaporative condensers and reiterates their responsibility to manage the risks they create to protect workers and members of the public from exposure to legionella.
Legal duties
What, as an employer or someone in control of premises – which includes landlords with responsibility for common parts – are your duties in respect of managing legionella risks?
Under general health and safety law you must take suitable precautions to prevent or control the risk of exposure to legionella, and more specifically:
•Health and Safety at Work etc Act 1974: duties extend to risks from legionella bacteria that may arise from work activities.
•Management of Health and Safety at Work Regulations 1999: provides a broad framework for controlling health and safety at work.
•Control of Substances Hazardous to Health Regulations 2002 (COSHH): provides a framework of duties designed to assess, prevent or control the risk from bacteria like legionella and take suitable precautions.
•Notification of Cooling Towers and Evaporative Condensers Regulations 1992: those with a cooling tower or evaporative condenser on site must provide the local authority with details of its location and if/when such devices are no longer in use.
Approved code of practice
Fortunately, the means of legionella control are well understood and an effective approach is set out in HSE’s Approved Code of Practice and guidance L8: Legionnaires’ Disease – The control of legionella bacteria in water systems. In buildings where there are likely to be people present that are more susceptible to infection (for example, hospitals and other healthcare establishments) duty holders will also need to consider the further guidance provided by the Department of Health in Health Technical Memorandum 04-01: The control of Legionella, hygiene, “safe” hot water, cold water and drinking water systems.
L8 states that cooling towers, evaporative condensers and hot and cold water systems (and indeed any system in which a water-containing system operates above 20e_SDgrC and that may release a spray/aerosol while operating or when being maintained) present a foreseeable risk of exposure to legionella bacteria.
To comply with their legal duties, L8 dutyholders – which means employers and those with responsibilities for the control of premises – should:
•identify and assess the sources of risk by carrying out a risk assessment;
•prepare a written scheme to prevent or control the risk (a “scheme of control”);
•implement, manage and monitor precautions;
•keep records of the precautions; and
e_SBlt appoint a person to be managerially responsible, where a risk has been identified.
If the dutyholder and/or the responsible person do not possess the requisite skills to fulfil their obligations they will need to appoint a suitably competent person(s) to help them, which can include external consultants and contractors.
Preventing or controlling the risk
Eliminating a legionella risk is not always possible or practicable and in these cases water services should be designed, maintained and operated under conditions in which the growth of legionella bacteria is prevented or adequately controlled.
The table on page 108 sets out the conditions in which legionella may thrive and be dispersed, together with the action that can be taken to eliminate or control the bacteria.
The requirement to make and keep written records varies according to how many employees there are within the organisation – although it is recommended that all dutyholders should retain records.
Enforcement and prosecutions
In the five-year period to June 2012 the HSE issued improvement and prohibition notices – arising from proactive inspections and investigations – on duty holders in relation to breaches of legislation of legionella control in 321 separate cases: 14 prosecutions were made. The manufacturing and public services sectors accounted for the vast majority of HSE involvement, with cooling towers and hot water systems identified as the main culprits. The grounds for prosecution were largely attributable to the failure to have in place an adequate scheme of control and risk assessment.
In recent years, the penalties for flouting health and safety law have greatly increased. Until 2009 imprisonment for health and safety offences was rare. That all changed with the introduction of the Health and Safety (Offences) Act 2008, which gave the magistrates courts the power to impose fines of up to £20,000 and, in Scotland, a prison sentence of up to 12 months. Crown courts retain the power to impose unlimited fines and up to two years’ imprisonment. It is therefore very likely that in the event of a serious incident where there has been gross negligence, the individual concerned will face a prison sentence. In addition to this, the Company Directors Disqualification Act 1986 empowers a court to make a disqualification order against a person convicted of a health and safety offence.
In May this year, a gas installer received an eight-month suspended prison sentence, 250 hours of unpaid community service and was ordered to pay £10,000 costs after his inadequate work on a domestic gas appliance endangered the residents’ lives.
In addition to an HSE prosecution, where there has been loss of life, a charge may also be brought under the Corporate Manslaughter and Corporate Homicide Act 2007 (the 2007 Act).
Under this Act an organisation can be found guilty of corporate manslaughter (corporate homicide in Scotland) if the way in which their activities are managed or organised by their “senior management” has resulted in a fatality.
Penalties include unlimited fines (which can be millions of pounds), remedial orders and publicity orders. In July this year Lion Steel was fined almost £500,000 under the Act in a case that demonstrated that the courts are not afraid to impose fines that effectively put a company out of business if the breach is serious enough. Lion Steel later went into administration.
Although an individual cannot be prosecuted under the 2007 Act they may still face charges for individual gross negligence manslaughter.
There have been no convictions for corporate manslaughter involving Legionnaires’ yet, but charges have been brought. In 2006 Barrow borough council was charged with corporate manslaughter after an outbreak at a council-run arts centre infected 180 people, killing seven.
They were cleared but, along with their senior architect (who was also subsequently struck off from the Architects’ Registration Board) they were fined £125,000 and £15,000 respectively for breaches of health and safety regulations.
It can only be a matter of time before a Legionnaires’ case does result in a corporate manslaughter conviction. The outcome of the legal proceedings instigated by this year’s Edinburgh and Stoke outbreaks is still unknown.
This must drive home the need for organisations to prioritise health and safety and to pay particular attention to how their activities are managed and organised. Failure to do so could jeopardise their futures.
Moreover, where there has been a workplace fatality, in addition to a potential corporate manslaughter offence, figures recently disclosed by the HSE reveal that prosecutions of directors in their individual capacity are on the increase.
Take action!
According to HSE research, 90% of Legionnaires’ outbreaks in the past decade were caused by organisations failing to identify risks and implement effective control measures.
While this means that companies with good health and safety systems in place have little to fear, the fact is that Legionnaires’ disease is almost entirely preventable.
Rather alarmingly, the number of proactive HSE inspections of sites considered to be at high risk of causing an outbreak of the disease have almost halved in recent years. More than ever before, organisations need to ensure that they have robust risk assessment systems in place in order to find, reduce and review risks on a regular basis. Get a copy of L8, seek professional advice if necessary and you can be more confident you are complying with the law.
Stephen Lemmon is a senior associate and manages the in-house mechanical and electrical engineering team at Malcolm Hollis
