Q. Are there any legal obligations to have Legionella assessments carried out, either externally or internally?
A; Legionella bacteria are a ‘substance hazardous to health’ as specified by the COSHH regulations 2002. As such, where there is a risk that employees or other persons may be exposed to these in a workplace, the employer has legal duties to risk assess and then eliminate/ reduce/ control/ monitor exposure to them.
Because Legionella control is a relatively complex process compared to preventing exposure to (for example) paint fumes in the workplace, there is a specific approved code of practice detailing how it should be managed. This is the ACoP L8. This document has a semi-legal status in that it is not law but in the event of legal action (e.g. in the event of a case of Legionnaires’ disease linked to an employer’s premises), successfully showing full compliance with the ACoP would be sufficient to demonstrate compliance with the relevant law (COSHH). The Highway Code, for example, is an approved code of practice.
Below the ACoP L8, the HSE has also issued a series of guidance documents called HSG274. These documents go into detail on ‘good practice’ to ensure effective Legionella controls.
In terms of external regulation and audits, there are two bodies which monitor Legionella control compliance – the HSE and local authority environmental health departments (with Public Health England also playing a role). Neither body has a fixed, legal duty to inspect all premises on a routine basis, they instead take a more select approach focusing on areas of high risk. In the event of an outbreak (2 or more confirmed cases) of Legionnaires’ disease in a geographical area, either the HSE or EHOs will inspect nearby premises or places where an infected person works or has visited.
In terms of potential enforcement, non-compliance with the recommendations laid down in HSG 274 or L8 is likely to result in formal enforcement action from either the HSE or Local Authority. From the HSE this can be in the form of improvement or prohibition notices, or at the lower end a ‘notification of contravention’ which comes with an invoice for time spent investigating a problem where an organisation is found to be non-compliant.
The ACoP L8 states in paragraph 48 – “If the [risk] assessment shows that there is a reasonably foreseeable risk and it is reasonably practicable to prevent exposure or control the risk from exposure, the dutyholder under paragraph 28 should appoint a competent person or persons to help undertake the measures needed to comply with the requirements in COSHH.”
With regards to what ‘competent’ means, it states in paragraph 58 – “The dutyholder should specifically appoint a competent person or persons to take day-to-day responsibility for controlling any identified risk from legionella bacteria, known as the ‘responsible person’. It is important for the appointed responsible person to have sufficient authority, competence and knowledge of the installation to ensure that all operational procedures are carried out effectively and in a timely way. Those specifically appointed to implement the control measures and strategies should be suitably informed, instructed and trained and their suitability assessed. They must be properly trained to a level that ensures tasks are carried out in a safe, technically competent manner; and receive regular refresher training. Keep records of all initial and refresher training.”
In summary, if you have premises with water systems and people present, there are likely to be Legionella risks. As such there is a legal duty under COSHH to control these. As such you are required to assess the risks and put in necessary control measures. Under L8 you are obligated to ensure the persons responsible for these control measures are trained and competent, however there are no specific stated standards in the guidance for this training – the training provided by Hydro-X is approved by IOSH, giving reassurance that it is of a high quality and relevance. On the various occasions where our clients have been subject to audit by external public bodies, this level of training has never been questioned. Whilst you are probably unlikely to be externally audited on Legionella controls on a routine basis, under certain circumstances (e.g. a member of staff contracts Legionnaires’ disease) there is a strong chance you will be. In the event that you are and are found to be wanting in terms of compliance, enforcement action is very likely.