What The Law Says
Law & Compliance
To comply with their legal duties, employers and those with responsibilities for the control of premises should:
- identify and assess sources of risk – this includes checking whether conditions are present which will encourage bacteria to mulitply, e.g. is the water temperature between 20-45°C; is there a means of creating and disseminating breathable droplets, e.g. the aerosol created by a shower; and if there are susceptible people who may be exposed to the contaminated aerosols;
- prepare a scheme for preventing or controlling the risk;
- implement, manage and monitor precautions – if control measures are to remain
- effective, then regular monitoring of the systems and the control measures is
- essential. Monitoring of general bacterial numbers can indicate whether
- microbiological control is being achieved. Sampling for legionella is another means of checking that a system is under control;
- keep records of the precautions; and appoint a person to be managerially responsible.
To reduce the possibility of creating conditions in which the risk from exposure to legionella bacteria is increased, it is important to control the risk by introducing measures which:
- do not allow proliferation of the organisms in the water system; and
- reduce, so far as is reasonably practicable, exposure to water droplets and aerosol.
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Legislation – Health and Safety Law
MHSWR provide a broad framework for controlling health and safety at work:
- require risk assessments
- require employers to have access to competent help in applying the provisions of health and safety law
- to establish procedures to be followed by any worker if situations presenting serious and imminent danger were to arise
- and for co-operation and co-ordination where two or more employers or selfemployed persons share a workplace.
Only the courts can give an authoritative interpretation of law in considering the application of these Regulations and guidance to people working under another’s direction. Therefore the following should be considered:
- if people working under the control and direction of others are treated as self employed for tax and national insurance purposes they may nevertheless be treated as their 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, it should be remembered that 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.
- if people working under the control and direction of others are treated as self employed for tax and national insurance purposes they may nevertheless be treated as their 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, it should be remembered that 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.
Cases of legionellosis are reportable under RIDDOR if a doctor notifies the employer and if the employee’s current job involves work on or near cooling systems that use water or hot water service systems in the workplace. Further details can be obtained in HSE guidance.
