Ms L McGinn and Mr C Kennedy v East Ayrshire Council: 4107571/2024
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that the Prohibition Notices serial numbers: EAC/HS/P/003/2024-5 issued to the First Appellant on 15 November 2024 and EAC/HS/P/004/2024-5 issued to the Second Appellant on 15 November 2024 are affirmed.REASONS
[1]The appellants are respectively the operator and owner of the Therapy Hand Day Spa, 65 Castle, New Cumnock, East Ayrshire, KA18 4AG. On 14 November 2024, the respondent conducted an investigation which culminated in the issue of Prohibition Notices to the appellants on 15 November 2024. By application to the Employment Tribunal dated 5 December 2024, the appellants appealed against the Notices. The respondent resists the appeal.Evidence
[2]The parties produced a joint bundle of documents (J) and referred to them by page number. The respondent called the following witnesses to give evidence: Deborah McPhillips, Environmental Health Officer; Jennifer Gray, Environmental Health Officer; and Morag McCallum, Business Regulation Team Leader. The second appellant represented and gave evidence on behalf of both appellants. Findings in Fact[3]The following material facts were admitted or found to be proved:[4]The first appellant is the operator of the Therapy Hand Day Spa, 65 Castle, New Cumnock, East Ayrshire, KA18 4AG. The second appellant is the owner of the business. This case concerns a four person domestic hot tub/ spa pool (variously referred to as a “hot tub” and a “spa-pool”) installed in the spa. The hot tub is a ‘Sure spa JCS – 57’.[5]In or about November 2021, prior to purchasing the hot tub, the second appellant contacted the respondent’s Environmental Health Department to say that he would be installing a hot tub and requesting information. They replied (137) with links to the necessary guidance: firstly, the Health and Safety Executive 2017 publication HSG282, entitled ‘The control of legionella and other infectious agents in spa-pool systems’ (73 - 134) (“HSG282”) and secondly, L8 (fourth edition) HSE Approved Code of Practice and guidance on regulations – Legionnaires’ disease The control of legionella bacteria in water systems’ (“L8”). In the email, they explained the particular risks posed by hot tubs in respect of legionella and other bacterial infections.[6]In or about October 2024, the first appellant made an application to the respondent for an acupuncture licence. The respondent’s Deborah McPhillips, (Environmental Health Officer) visited the day spa premises in order to assess the proposed acupuncture room. She noted that the room had a carpet and did not have a wash hand basin or adequate ventilation and she communicated this to the first appellant. Ms McPhillips undertook to confirm her requirements in an email so they could discuss them. As Ms McPhillips was about to leave, the first appellant asked if she wanted a look around the spa. The first appellant took her through two double doors into an open area with a sauna and a hot tub. The hot tub in question was a domestic hot tub. Ms McPhillips did not say anything to the first appellant about the hot tub at that time. She wanted to read up on the guidance and discuss the matter with her team leader, Morag McCallum.[7]Ms McPhillips agreed with the first appellant that she would come back to the day spa on 14 November - once the first appellant had made the necessary alterations - to check the proposed acupuncture room and make sure it was suitable.[8]On 14 November 2024, Ms McPhillips attended the day spa as arranged. She was accompanied by her colleague, Jennifer Gray - also an Environmental Health Officer (“EHO”) - who was there to speak to the first appellant about the hot tub. They had not told the first appellant in advance of their visit that they wanted to look at the hot tub. The visit began with an inspection of the acupuncture room. The room now proposed had a wash hand basin, as well as a toilet and shower. The shower had ventilation. The room had a carpet but the first appellant said she would replace it to ensure a clinical environment. The EHOs left the room and had a discussion with their team leader about it. They then relocated to the room with the hot tub.[9]Ms Gray asked the first appellant to open the hot tub so they could see inside. The first appellant refused, saying she did not want to open it as it was due to be cleaned that day. Ms Gray asked her again to open it and she again refused. Ms Gray made her aware of her powers under the Health and Safety at Work Act and told the first appellant that if she did not open the hot tub, it would be an obstruction. The first appellant then opened the hot tub and the two EHOs ran through their standard list of questions for spas and hot tubs and they both individually noted down the first appellant’s answers (207 – 237). The first appellant said she did not know the make and model of the tub or the type of filter. With regard to how often the filter was cleaned or changed, the first appellant said that the landlord (the second appellant) cleaned the filter whenever the tub needed to be cleaned – on a weekly basis unless there had been more than 6 users, in which case, she would contact the second appellant to empty and refill the tub. The first appellant said she did not know whether the tub had a UV light, nor did she know the water capacity of the tub. The manufacturer’s instructions were not available. The tub had a capacity of 4 people. With regard to the average number of people using the tub per day, the first appellant said that that day there were none; tomorrow, 2 people were booked in. It would be 6 at the most per day. Yesterday there had been 1 person in the morning and 2 at night. On Saturday, 2 people were booked.[10]Ms Gray asked the first appellant whether she was aware of the risks associated with hot tubs and she replied: “As you said, legionella”. Ms Gray asked her why legionella was a risk and whether there were other risks and the first appellant said she would need to check her notes as she had not done pool plant for some time. She confirmed that it was a requirement for users to shower before entering the tub. With regard to the disinfectant dosing system, the first appellant said she hand dosed with a scoop, adding the granules gradually and testing the water before use. She said she used bromine, specifically: ‘Aquasparkle bromine infused granules and Aquasparkle PH plus strips. When asked how much disinfectant she was using in mg per litre, she said she would go by the test strips “PH, free chlorine, total alkalinity”. Ms Gray asked the first appellant whether a ’Control of Substances Hazardous to Health 2002 risk assessment addressing legionella and chemicals had been carried out and she replied: “No, I only use the chemicals.” The first appellant was asked “Who monitors the pool?” She responded: “Just me”. In answer to the question: “How frequently?”, she responded: “depends on bookings. A timer is on every day to ensure the filter is functioning – check headrest, that it’s working properly before use and check chemical levels + temperature – c. 39°C is what it usually sits at”. Ms Gray asked the first appellant what the target levels were for bromine and she replied that she just used the strips (211). She did not know that the target levels were between 4-6mg/l. She said the monitoring method was test strips and that the parameters monitored were free bromine, PH and total alkalinity. With regard to action to be taken if the levels were found to be outwith the required range, the first appellant said: “hand dose and checking again, small amounts added until it reaches the range required.” She was asked whether she had monitoring records available and it was noted there were: “no records”. She was asked whether there were microbiological testing records available and the answer recorded was: “no – don’t test”. Under ‘details of cleaning regime including how often the water is replaced’, the answer recorded was: that the Landlord cleaned it and the first appellant always checked it the day before. Otherwise, the first appellant responded: “Daily – clean around the waterline// - check if water looks iffy it is changed.” She said that the filter was always on and working.[11]Under ‘Comments/ further notes’, the following were recorded: “experience/ training: pool plant training with Eagle Leisure- should have certificate somewhere. Previously worked with commercial spas in hotels Landlord, Craig Kennedy- empties the hot tub weekly unless I tell him it hasn't been used. 10 days max even if no one has used it in that time. If not used on a timer to [filter +] turn on in the morning, heats up and filter [is working]. If hot tub is not getting used, it is checked every second day (with test strips) - max 2 - 3 days without used usually. [Last client in last night. Landlord coming today 2pm to clean + empty tub. (235)][12]The two Environmental Health Officers (“EHOs”) then asked if they could speak to the second appellant about the cleaning of the tub. The first appellant called him and the EHOs spoke to him on speaker phone and both noted down his responses (216) and (235) as follows: Telephone call with Craig Kennedy, Landlord. [Owns premises + spa pool (235)] - cleans tub after max of 8 people - he empties it with a pump and discharges it out a hole in the wall and down an external drain - once emptied there is a small drain in the bottom and he drains excess water into a bucket. - washes with a mild antiseptic detergent cleaner (can't remember name). Cleans sides, bottom, filter washed. Paper cartridge type filter - cleans every time he empties the tub. JG Q- is there a UV light in the tub- CK A Don't think so. JG Q manufacturer’s instructions? CK A On site. JG - clean headrests? CK – weekly. JG Clean jets? Remove them to do so? CK – [Doesn’t clean the jets (plastic) (236)]. They can't be removed. [Can be replaced if damaged] JG - How do you fill the hot tub. CK - Hose and tap in changing room. JG - How long operating tub CK over 1 year.” [1 year 6 months (237)][13]The cleaning regime described by the second appellant was quite basic. There was no mention of shock dosing (regularly adding higher doses of disinfectant to get it round the pipework which cannot be reached by surface cleaning in order to control bacteria and prevent biofilms forming.) If a risk assessment had been carried out, it would have identified that the checking of PH value and residual disinfectant should be done twice daily depending on usage as set out in HSG282 table of typical frequencies for a domestic spa-pool (106). The table (107) also states that domestic-type spa pools and hot tubs should send samples for microbiological testing monthly for ACC, coliforms, E coli, and pseudomonas aeruginosa and quarterly for legionella. The appellants had never previously done this.[14]A hot tub/spa-pool needs to be under control to ensure adequate cleaning, disinfectant dosing, monitoring and sampling. If a hot tub / spa pool is not cleaned effectively and frequently in the right manner, and if the correct chemical levels are not maintained, dangerous bacteria can accumulate. The ratio of bathers to water is much higher in a tub than in a swimming pool and bathers shed organic matter into the tub/pool. In a hot tub, the same water is continuously circulating round on a timer. Some of the pipes where the water circulates are not accessible for manual cleaning and biofilms can develop and become resistant to the chemicals. The specific hazards with hot tubs are legionella and microbial growth. Legionella is a serious risk to health, not only for those using the tub but potentially also for others in the vicinity. This is because the hot tub agitates the water, producing aerosols in the air, so bacteria in the water such as legionella (if present) can be inhaled. In addition to legionella, tubs/pools can also harbour pneumococcus, staphylococcus aureus (impetigo), pseudomonas aeruginosa, E coli, coliforms and other bacterial infections if the disinfection regime is ineffective. The temperature in a tub is around 39° centigrade. Micro-organisms can grow between 20 and 45°C. It is therefore essential that the chemicals in the tub are kept at the correct levels. This is particularly so as the chemical levels drop when people use the tub. The EHOs were concerned that the first appellant did not know how to open the front panel of the tub and did not know whether it had a UV light. A UV light is not compulsory but it is an extra precaution. They worried that the first appellant - who was the operator on site - did not know where the manufacturer’s instructions were and did not know the water volume of the tub. It is particularly important to know the volume of water in the tub if you are hand dosing the chemicals as the first appellant was doing, because you need to know you are adding the correct dose of chemicals for the volume of water. You also need to be able to adjust the levels - if required - by whole or partial water replacement[15]The EHOs noted from their conversation with the first appellant that she had not carried out a risk assessment or scheme of control and they concluded that the first appellant did not have adequate control measures in place. Control measures would have ensured that day to day tasks were being undertaken to address the risk of legionella and other harmful bacteria proliferating in the tub. The EHOs were concerned that the first appellant was operating the tub but did not know how to empty it. The appellants’ tub had a capacity of 4 people. The first appellant had said the water would be changed after 6 clients had used it but that is potentially 2 groups of people who do not know each other. The EHOs considered that the water should be emptied and changed after each group of users. Hand dosing is less effective than an inline continuous disinfectant feeder because with hand dosing, the levels can drop drastically over time. Hand dosing also carries the risk of over-dosing, which requires the tub to be emptied and re-filled, which the first appellant was unable to do.[16]The first appellant was hand dosing the bromine disinfectant and using test strips to check the levels in the tub before use. The bromine levels in a hot tub should be between 4 and 6mg per litre of water. The chemical levels in a tub fluctuate throughout the day, especially if the tub is used by bathers. The water should therefore be tested more than once a day. There were no monitoring records produced to the EHOs. Monthly microbial testing is advisable and Legionella testing should be done every three months. The EHOs were concerned that the first appellant had not demonstrated to them the necessary knowledge about the tub, the risks and how to control them. After the EHOs’ conversation with the second appellant, the first appellant said she had a client due in and she asked the EHOs to leave. Ms McPhillips filled out an inspection form (247) giving the reasons for their visit and gave it to the first appellant for her records. Ms Gray informed the first appellant that they would have to go back to the office and have a discussion with Morag McCallum their team leader regarding how to proceed and they left.[17]On their return to the office, the EHOs referred to the Health and Safety Executive 2017 publication HSG282, entitled ‘The control of legionella and other infectious agents in spa-pool systems’ (73 - 134) and, in particular paragraphs 6, 7 and 8 (77): “….Spa-pools have a much higher ratio of bathers to water volume than in swimming pools, so their water has a higher concentration of organic material from bathers. 6 There have been a number of outbreaks, including fatalities, linked to spa- pool systems in leisure centres, hotels, holiday homes, on cruise ships and on display. These systems pose a reasonably foreseeable risk as they have environmental conditions that could potentially allow and support growth and dispersion of legionella and other infectious agents where:• water is stored or recirculated;• water temperature in all or part of the system is between 20 - 45°C• these systems can support microbial growth;• water droplets are produced and dispersed as aerosols;• there is the potential for exposure to any contaminated aerosols. 7 The organism that causes legionnaires’ disease, primarily Legionella pneumophila, frequently grows in poorly designed and managed spapool systems. Other bacteria including other legionellae species, Pseudomonas aeruginosa and environmental mycobacteria, are also commonly found in spa- pools and can cause infection. These can be introduced into a spa-pool from the wider environment or the water source itself, and Pseudomonas aeruginosa may also be introduced from the bathers themselves. 8 Spa-pools are designed to contain water that is vigorously agitated, which leads to the formation of aerosols that can be inhaled. The water is usually maintained within the temperature range where legionellae and other infectious microorganisms can rapidly grow (20- 45°C) and the high organic content of spa- pool water makes it difficult to maintain effective disinfection. Spa-pool systems must therefore be managed carefully to ensure water quality does not encourage microbial growth and pose risks to users, people in the vicinity or passing near the spa- pool.”[18]When they returned to the office on 14 November 2024, the two EHOs had a discussion about what they had found at the appellants’ premises with their team leader, Ms McCallum. They were all of the opinion that, as currently being carried on by the appellants, the operation of the spa-pool involved a risk of serious personal injury to users of the pool and other people in the premises, namely a risk of exposure to legionella and other infectious agents associated with the spa pool because the appellants had not demonstrated that they understood the risks and had control of the systems. In particular, the EHOs were concerned about the infrequency of testing; the lack of knowledge of the water volume which meant the disinfectant hand dosing was haphazard; the lack of shock dosing; the fact that the person in control of the tub/pool did not have full knowledge of the cleaning and could not empty the tub; and the lack of risk assessment or scheme of control. They concluded that this was a system that was out of control. They all considered that a prohibition notice required to be issued on each of the appellants as duty holders requiring them to cease operating the hot tub/spa-pool immediately. Once the decision had been taken, they telephoned the first appellant to inform her that the notices would be issued and what they required to do.[19]Ms McPhillips issued Prohibition Notices (J435 - 442) to the appellants on 15 November 2024. The Notices were both in the same terms. The Notices stated that Ms McPhillips was of the opinion that the operation and use by the appellants of their Spa Pool (Sure Spa, JCS-57) involved a risk of serious personal injury; that the matters giving rise to the said risk were: exposure of users and others in the premises to legionella and other infectious agents associated with the spa pool; and that the said matters involved the contravention of the following statutory provisions: sections 3 and 4 of the Health and Safety at Work Act 1974 and regulations 6, 7, 8 and 9 of the Control of Substances Hazardous to Health Regulations 2002. The reasons given for the Environmental Health Officer’s opinion were that: “You have failed to ensure, so far as reasonably practicable, the safety of those persons not in your employment as 1. You have not demonstrated competence and understanding of the risks associated with the operation of the spa pool. 2. A suitable and sufficient assessment has not been carried out to identify and to assess the risk of exposure to users and other persons in the premises to legionella bacteria and other infectious agents from the spa pool. 3. A written control scheme has not been prepared, implemented and properly managed to control the risk of exposure to legionella and other infectious agents. 4. The hot tub water is not disinfected through the use of an inline continuous disinfection feeder.” The Notice further stated: “I hereby direct that the above mentioned spa pool shall not be operated and used by any persons unless the said contraventions and matters have been remedied. I further direct that the measures specified in the schedule which forms part of this notice shall be taken to remedy the said contravention.”[20]The Schedule to the Notice stated: “To comply with this Notice Either Comply with L8 (fourth edition) HSE Approved Code of Practice and guidance on regulations – Legionnaires’ disease The control of legionella bacteria in water systems and HSG 282 (first edition) HSE the control of legionella and other infectious agents in spa - pool systems in that; 1. Any persons involved in the operation of the spa pool must undergo training to ensure they are sufficiently trained in;(a) Potential sources of legionella bacteria and the risks they present;(b) Measures to adopt, including the precautions to take to protect the people concerned, and their significance;(c) Measures to take to ensure that the control measures remain effective, and their significance. 2. Carry out a suitable and sufficient assessment to identify and to assess the risk of exposure to users and other persons in the premises to legionella bacteria and other infectious agents from the spa pool. 3. Prepare a written control scheme to demonstrate how you will implement and properly manage to control the risk of exposure to legionella and other infectious agents. 4. The spa pool must be fitted with an inline continuous disinfection feeder. It is advisable that no alterations are carried out to the spa pool including the fitting of a disinfection feeder until you have demonstrated compliance with 1, 2, and 3 to above to this service. Or Take any other equally effective action (which you are advised to discuss with me prior to the expiry of this notice).”[21]The Notices (which only related to the hot tub/ spa pool and not to the appellants’ day spa business as such), were emailed to the appellants and sent by recorded delivery mail. Thereafter, an email correspondence ensued between the second appellant and the respondent (295 – 291) in which the second appellant challenged points in the Notice. He stated that he was not legally required to provide a written risk assessment. This was correct. However, in the circumstances, the provision of such a document was seen as a way for the appellants to show that they had risk assessed it as suggested in the HSE Legionnaires’ disease Guidance (L8) (153).[22]The respondent invited the second appellant to a meeting on 29 November 2024 to see if matters could be clarified and resolved. The hope was that parties could discuss what needed to be done in order to reopen the hot tub. The second appellant attended along with a friend, Mr Clark. Ms McCallum went to reception to meet the second appellant and his companion. She introduced herself. Ms McCallum had emailed the second appellant a few days before the meeting to say that she and Ms Gray would attend. The second appellant said to Ms McCallum in reception that he did not want Ms Gray there. He stated that Ms McPhillips should be there because she had issued the Notice. The meeting began with Ms Gray present. A note was taken (402). The second appellant said they had done a risk assessment and written it down even though they did not need to. It was discussed that in order to get the pool reopened, the appellants needed to do the things set out in the Notice. The second appellant refuted that some of these were necessary. The meeting lasted four hours. By the end of the meeting, the second appellant had agreed to provide the things that would enable the appellants to progress towards compliance to enable the hot tub/spa-pool to be put back into use.[23]On or about 2 December 2024, the second appellant emailed Ms McCallum (348), attaching a number of photographs of diary pages (349-389). He explained in the covering email that these were: “photographs showing how we record our water testing results. The results are recorded in our appointments diary, the water is tested before the clients arrive, or weekly if we have no clients.” The photographs were for that financial year (from April 2024). Unfortunately, these caused the respondent more concern because, so far as legible, they demonstrated that the levels of bromine had sometimes been as low as 3 or 2.5mg/l, when they should have been between 4 – 6mg/l per HSG282 (117). The levels had also been tested before bathers had gone into the tub, after which point the levels would have gone down. At bromine levels of 3 or 2.5 mg/l action should have been taken. It is not possible to accurately gauge the bromine levels in the tub using the test strips the first appellant showed the respondent because they register between 2 and 6.6 mg/l. They do not give an accurate reading at 4 mg/l.[24]On the same date (308), the second appellant sent the respondent a written scheme of control (310 – 319). Unfortunately, this document also did not demonstrate the knowledge and control of the systems required. Indeed, the respondent found it alarming. There was no detail given of the water volume of the tub. The ‘daily tests’ information (317) indicated that the appellants were proposing to test that the active bromine levels were between 1.5 and 6 mg/l, when - per HSG282 - the bromine levels required to be maintained between 4 and 6 mg/l (117). A bromine level below 4 is too low to control microorganisms and could allow biofilm and bacteria to grow. HSG282 (117) states that when the bromine is below 2 mg/l, the spa pool should be closed and corrective actions and retesting carried out. The proposed written scheme of control (317) suggested that action would not be taken until the bromine was at 0.5 mg/l, which was a very dangerous system. The suggested dosing system demonstrated that the appellants lacked the knowledge necessary to safely operate the tub. When the second appellant had opened his spa, the respondent had sent him copies of HSG282 and L8 as stated above. However, the proposed scheme of control underscored that even at this stage, the safe bromine dosing information in HSG282 (117) had not been taken on board.[25]In its section on ‘Cleaning and disinfection’ (111) HSG282 states at paragraph 135: “At PH-7, free chlorine residual measured by DPD1 should be 3-5mg/l, or total active bromine 4-6 mg/l. The effectiveness of the disinfectant is directly related to the pH of the water. Spa-pool water treatment chemicals should be continuously dosed and dosing of high-bather-load spa pools should be automatically controlled. Hand-dosing should only be used in emergencies such as plant failure or for shock treatment.” An in-line bromine continual release dose was step 4 in the Notice, because the first appellant was hand dosing, which is only appropriate for emergencies. Automatically controlled systems have a probe, constantly checking levels and automatically keeping them accurate. Ms Gray asked the first appellant what the target levels were for bromine and she replied that she just used the strips (211). She did not demonstrate knowledge that the target levels were 4-6mg/l.[26]L8 is the Health and Safety Executive’s approved Code of Practice and Guidance on regulations regarding Legionnaire’s disease. It states that it is: “aimed at duty holders, including employers, those in control of premises and those with health and safety responsibilities for others, to help them comply with their legal duties in relation to legionella. These include identifying and assessing sources of risk, preparing a scheme to prevent or control risk, implementing, managing and monitoring precautions, keeping records of precautions and appointing a manager to be responsible for others.” (141)[27]By email dated 12 December 2024, Ms McCallum responded to the claimant about the various documents he had sent on 2 December.[28]The appellants appeal to this Tribunal against the Prohibition Notices. Applicable Law Substantive LawApplicable Law
[29]Section 3 Health and Safety at Work etc Act 1974 provides that: “3 General duties of employers and self-employed to persons other than their employees(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.(2) It shall be the duty of every self- employed person [who conducts an undertaking of a prescribed description] to conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety. (2A) A description of undertaking included in regulations under subsection (2) may be framed by reference to - (a) the type of activities carried out by the undertaking, where those activities are carried out or any other feature of the undertaking; (b) whether persons who may be affected by the conduct of the undertaking, other than the self-employed person (or his employees), may thereby be exposed to risks to their health or safety.(3) In such cases as may be prescribed, it shall be the duty of every employer and every self- employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.”[30]Section 4 Health and Safety at Work etc Act 1974 provides that: “4 General duties of persons concerned with premises to persons other than their employees(1) This section has effect for imposing on persons duties in relation to those who- (a) are not their employees; but (b) use non domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there, and applies to premises so made available and other non- domestic premises used in connection with them.(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be provided for use there, is or are safe and without risks to health.(3) Where a person has, by virtue of any contract or tenancy an obligation of any extent in relation to- (a) the maintenance or repair of any premises to which this section applies or any means of access thereto or egress there from; Or (b) the safety of or the absence of risks to health arising from plant or substances in any such premises; that person shall be treated for the purposes of subsection two above as being a person who has control of the matters to which his obligation extends.(4) Any reference in this section to a person having control of any premises or matter is a reference to a person having control over the premises or matter in connection with carrying on by him of a trade, business or other undertaking (whether for profit or not).”[31]The Control of Substances Hazardous to Health Regulations 2002 (“COSHH”) state so far as relevant: “Duties under these Regulations 3.—(1) Where a duty is placed by these Regulations on an employer in respect of his employees, he shall, so far as is reasonably practicable, be under a like duty in respect of any other person, whether at work or not, who may be affected by the work carried out by the employer except that the duties of the employer— (a) under regulation 11 (health surveillance) shall not extend to persons who are not his employees; and (b) under regulations 10, 12(1) and(2) and 13 (which relate respectively to monitoring, information and training and dealing with accidents) shall not extend to persons who are not his employees, unless those persons are on the premises where the work is being carried out. (2) These Regulations shall apply to a relevant self-employed person as they apply to an employer and an employee and as if that relevant selfemployed person were both an employer and an employee, except that regulations 10 and 11 shall not apply to a relevant self-employed person.” Provisions relating to Prohibition Notices and Jurisdiction of the Employment Tribunal.[32]Section 22 of the 1974 Act concerns prohibition notices and is in the following terms: “22 Prohibition notices(1) This section applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on apply.(2) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referred to as “a prohibition notice”).(3) A prohibition notice shall - (a) state that the inspector is of the said opinion; (b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risk; (c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reason why he is of that opinion; and (d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.(4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect— (a) at the end of the period specified in the notice; or (b) if the notice so declares, immediately.[33]The right to appeal against the notice is contained in section 24 of the 1974 Act: “24 Appeal against improvement or prohibition notice(1) In this section “a notice” means an improvement notice or a prohibition notice.(2) A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.” Discussion and decision[34]The test applicable to an appeal against a prohibition notice was confirmed in the case of HM Inspector of Health and Safety v Chevron North Sea Ltd 2018 SC (UKSC) 132). At paragraph 18, the Supreme Court stated that what matters when the inspector serves the notice is that he/she is of the opinion that the activities in question involve a risk of serious personal injury. “However,….. when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion but against the notice itself, as the heading of section 24 indicates. Everyone agrees that it involves the tribunal looking at the facts on which the notice was based.” ….. Thus, the tribunal must look at all the relevant facts and take its own view on those facts as to whether at the time the notice was served, there actually existed a risk of serious personal injury. The court went on “The inspector’s opinion about the risk, and the reasons why he formed it and served the notice, could be relevant as part of the evidence shedding light on whether the risk existed, I can see no good reason for confining the tribunal's consideration to the material that was, or should have been available to the inspector. It must, in my view be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was.”[35]The substantive provisions said to have been breached in this case included section 3(1) of the Health and Safety at Work Act 1974. Section 3(1) provides that: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”.[36]We considered the facts at the relevant time and made the findings set out above. We concluded that at the time the Notices were served, the appellants’ hot tub/ spa-pool activities involved a risk of serious personal injury for the following reasons:[37]The appellants had been sent links to L8 (fourth edition) HSE Approved Code of Practice and guidance on regulations – Legionnaires’ disease; ‘The control of legionella bacteria in water systems’; and HSG 282 (first edition) HSE the control of legionella and other infectious agents in spa - pool systems’. Those documents set out the various features of a safe system of control for hot tubs/spa pools.[38]The risks to health from hot tubs/ spa pools arise from legionella and other microbial infections. Legionella is a potentially fatal disease. It poses a serious risk to health, not only for those using the tub but potentially also for others in the vicinity. This is because the hot tub agitates the water, producing aerosols in the air, so that bacteria in the water such as legionella can be inhaled. In addition to legionella, tubs/pools can also harbour pneumococcus, staphylococcus aureus (impetigo), pseudomonas aeruginosa, E coli, coliforms and other bacterial infections if the disinfection regime is ineffective. The temperature in a tub is around 39° centigrade. Micro-organisms can grow between 20 and 45°C. It is therefore essential that the chemicals in the tub are kept at the correct levels. This is particularly so as the chemical levels drop when people use the tub.[39]A hot tub/spa-pool needs to be under control to ensure adequate cleaning, disinfectant dosing, monitoring and sampling. If a hot tub / spa pool is not cleaned effectively and frequently in the right manner, and if the correct chemical levels are not maintained, dangerous bacteria can accumulate. The ratio of bathers to water is much higher in a tub than in a swimming pool and bathers shed organic matter into the tub/pool. In a hot tub, the same water is continuously circulating round on a timer. Some of the pipes where the water circulates are not accessible for manual cleaning and biofilms can develop there and become resistant to the chemicals.[40]The specific risk of serious personal injury to those in the vicinity of the hot tub in the appellants’ day spa in mid-November 2024, namely the risk of exposure to legionella and other dangerous bacteria arose because:(i) the appellants did not show that they understood the risks and how they could arise;(ii) they did not have an effective scheme of control in place to identify the risks and the steps required to control them (this does not need to be in writing but the appellants needed to be able to demonstrate that it had been done). Indeed, in the scheme of control they emailed to the respondent on 2 December 2024, the ‘daily tests’ information (317) indicated that the appellants were proposing to test that the active bromine levels were between 1.5 and 6 mg/l, when - per HSG282 - the bromine levels required to be maintained between 4 and 6 mg/l (117). A bromine level below 4 is too low to control micro-organisms and could allow biofilms and bacteria to grow. HSG282 (117) states that when the bromine is below 2 mg/l, the spa pool should be closed and corrective actions and retesting carried out. The appellants’ proposed written scheme of control (317) suggested that action would not be taken until the bromine was at 0.5 mg/l, which was a very dangerous system. The suggested dosing system demonstrated that at that time, the appellants lacked the knowledge necessary to safely operate the tub/ spa-pool;(iii) the appellants were hand dosing the disinfectant chemicals without knowledge of the water capacity of the tub, so that their dosing was haphazard;(iv) they were using testing strips that did not have the sensitivity to accurately indicate a reading between 4-6 mg/l free bromine level;(v) accordingly, they were not keeping the bromine levels at 4 – 6 mg/l as required for the safety of bathers. The testing records they emailed to the respondent on 2 December 2024 demonstrated that bromine levels recorded on a number of occasions had been 2.5 or 3 mg/l, which is too low. Ms Gray asked the first appellant what the target levels were for bromine and she replied that she just used the strips (211). She did not know that the target levels were 4-6mg/l;(vi) twice daily checking of PH value and residual disinfectant was required, depending on usage as set out in HSG282 table of typical frequencies for a domestic spa-pool (106). This was not happening under the appellants’ system;(vii) the appellants were not regularly shock dosing the tub as required to stop biofilms growing in pipes and other parts of the tub which could not be reached by their cleaning regime;(viii) they were not carrying out regular monthly sampling of the tub for ACC, coliforms, E coli, and pseudomonas aeruginosa or quarterly sampling for legionella. The pool had been open for around 18 months as at 14 November 2024 and no such sampling had been done;(ix) the person in control of the tub/pool did not have full knowledge of the cleaning and could not empty the pool.[41]In these circumstances, we concluded that the Notices should be affirmed and the appellants encouraged to take the steps set out in the Notices to make the system safe.[42]With regard to the submissions from the second appellant, we had some sympathy with him in relation to the surrounding circumstances of the inspection. We did wonder whether it could have been handled more tactfully. It is true that the hot tub was not mentioned to the first appellant as a concern after Ms McPhillips’ first visit on 5 November, so that the first appellant had the impression she was being ambushed on 14th November. We understood the reason for this. The officers explained that they often do not forewarn dutyholders of their impending inspections because they are testing the experience of an ordinary member of the public on a given day. This will not happen if advance notice is given to the duty-holder.[43]We agreed that some of the discussions regarding the legislation and whether or not the appellants’ risk assessment/ scheme of control required to be written were unhelpful and occasionally confusing for the appellants. We also understood that whilst the second appellant was correct that the risk assessment did not need to be in writing, a written assessment was the easiest way for him to convey the terms of any assessment that had been done.[44]In his submissions, the second appellant referred to section 20 of the Health and Safety at Work Act 1974. He complained that the first appellant was not asked to sign the interview notes. Section 20 sets out the powers of inspectors. One of their powers is to require a person to answer questions and to sign a declaration of the truth of their answers. (s.20(2)(j)). However, that section simply gives the inspectors these powers. They do not have to use them and were not invoking them on this occasion.[45]The Prohibition Notice came into effect on 15 November 2024 and the tub was closed. On 3 December 2024, the appellants arranged for a sample to be taken of the water in their tub. This sample tested negative for legionella and other infectious agents. The second appellant submitted that this conclusively proved that the appellants were managing the hot tub safely and controlling the risks. However, as the respondent submits, HSG282 states at (118) that microbiological testing “should be done when the pool is in use and preferably when heavily loaded or immediately afterwards”. This test was done on a tub that was not in use. As the respondent submits, the test result is therefore of limited evidential value. In any event, a sample only gives a snapshot at a particular point in time, whereas regular sampling whilst a tub is in use builds up a more representative picture over time as part of a safe system of control.[46]The second appellant submits that the use of an inline continuous disinfectant feeder is not a mandatory requirement. We accept that submission. However, such a feeder would be likely to solve a number of the problems with the appellants’ system because it would continually check and maintain the bromine levels in the appellants’ tub at between 4 and 6 mg/l, where they required to be. Unfortunately, the evidence overwhelmingly showed that the appellants’ system did not achieve this.[47]In all the circumstances, we are unanimously of the view that the Notices should be affirmed.