David Lloyd Club prosecution highlights importance of risk assessments

As recently reported by HSM, David Lloyd Leisure Club was fined £2.55million following the sad death of a toddler at its centre in Moortown, Leeds.

The leisure operator pled guilty to charges against the Health and Safety at Work Act 1974, with the case providing stark learnings for swimming pool operators about the importance of upholding a robustly assessed duty of care.

In this tragic case, a prosecution was brought by Leeds City Council after a three year old boy drowned when visiting the leisure club with his father and sister in April 2018. The father noticed that his son had left his side and, after searching, spotted him at the bottom of the swimming pool. He dived in and pulled his son from the pool, who sadly died in hospital the following day.

On 1 August 2023, David Lloyd Leisure Club Limited pleaded guilty to a section 33(1) Health and Safety at Work etc. Act 1974 offence, which related to the company exposing club members to risks between September 2015 and April 2022.  The prosecution contended that there had been inadequate lifeguarding arrangements at the club over a number of years. 

At the time of the incident, there was only one 17-year-old lifeguard on duty who was expected to supervise 50 people. Judge Simon Phillips KC also noted that the operator had ignored previous employee concerns about the number of lifeguards working at any one time. 

The culpability surrounding inadequate lifeguard provision is clear, however, the duty of care for swimming pool operators stretches significantly beyond this. Current Health and Safety Legislation set out as part of the Health and Safety at Work Act 1974 places a duty on operators to take such care as is reasonably practicable to ensure the safety of employees and members of the public. 

Looking more specifically at swimming pools, HSE Guidance (HSG179) requires operators to provide a safe and enjoyable experience. Risks to workers and pool users must be minimised, without unduly restricting enjoyable and beneficial pool activities. This involves specific focus on the organisation of staff, such as lifeguards, as well as their training, signposting hazards, supervision of equipment and adequacy of written procedures including emergency procedures.

To ensure compliance and enhance health and safety standards, operators of swimming pools used by the public are best placed undertaking regular risk assessments. These should focus on the swimming pool environment, considering factors such as the design of the pool, how it is used by people, signage, any separate equipment and how this affects pool usage, and staffing. An effective risk assessment should also focus on staff experience and training, pool maintenance and water treatment, and a review of emergency procedures. 

Engagement with staff can form a valuable part of risk assessments. Gauging employee feedback about their experiences of practically managing health and safety will highlight concerns, as well as suggestions for implementing effective changes. Supporting this with scheduled reviews of swimming pool accidents and incidents will also provide crucial insight for taking practical and actionable steps towards protecting the health and safety of staff and the public. 

It's advisable for risk assessments to be undertaken regularly, or at the very least, to be considered as pool-based activities and programmes change. Many leisure clubs or hotels will trial and introduce new swimming pool classes, which may impact factors including the number of people using the pool at any given time, the average age of pool users or the use of equipment and objects in the pool. Each of these variables will present different risks that need to be identified, understood, and addressed. 

Robust and regular risk assessments will help swimming pool operators to uphold their duty to provide a safe and enjoyable experience for staff and members of the public. 

Ridwaan Omar is a partner and head of regulatory, insurance at Forbes Solicitors.