Consultation on Legionnaires’ Disease (L8) 2013 – UNISON national response.

UNISON’s national response to CD 258

Consultation on Legionnaires’ Disease: The control of legionella bacteria in water systems (L8).

This response is on behalf of UNISON nationally, and was produced by UNISON’s Health and Safety Unit in consultation with our National Health and Safety Committee. This response may be published in full.

Address: UNISON, Health and Safety Unit, UNISON Centre, 130 Euston Road, London, NW1 2AY.

Direct: 020 7121 5709

Contact: Vincent Borg

Position: Assistant National Officer for Health and Safety

Tel: 020 7121 5709

Email:

UNISON is Britain's largest public services trade union with more than 1.3 million members. Our members work in the public sector, for private contractors and voluntary sector organisations providing public services. They include frontline staff and managers working full or part-time in local authorities, the NHS, the police service, colleges and schools, the electricity, gas and water industries, transport and the voluntary sector.

Overall

UNISON welcomes the opportunity to comment upon the revision of this ACOP and guidance. In response to the consultation exercise on Legionnaires in 2012, we raised concerns about theseparation of Parts 1 and 2 of the ACOP and guidance. Specifically, UNISON’s concern was that the separation may increase the burden upon employers by requiring them to find two separate documents to understand their legal duties. As a consequence, we believed this risked a decrease in compliance. This view was supported by our branches.

Northampton Borough Council UNISON Branchhas in the past experienced a Legionella outbreak at local leisure centres and was concerned that the physical separation of the two parts may cause important information to be missed, and lead to further outbreaks. Glasgow Housing UNISON Branch and others suggested that the then recent Legionella outbreak in Edinburgh suggested that the ACOP was not being applied, and this was where the HSE needed to focus its energy.

Neill Roberts, health and safety officer for the UNISON branch at the London School of Economics believed that the move to separate: “guidance and ACOPs from Regulations... [would] make... life more difficult by having to consult two or more documents rather than a single set of regulations with ACOP and guidance, making it more difficult to identify what employers should be doing to comply with the law, and consequently to identify non-compliance.”

UNISON therefore welcomes the fact that this concern has been taken on board with the proposal that Parts 1 and 2, and the web based information will be thoroughly cross referenced.

UNISON also welcomes the fact that a number of improvements, as detailed below, have been made. UNISON believes that this reflects the importance that needs to be placed on the control of legionella risks, as demonstrated by the outbreaks in 2012.

It is worth noting that these outbreaks occurred in workplaces that the government defines as low risk and consequently otherwise prohibits being proactively inspected. Prior to this prohibition, local authorities and the HSE were in any case hampered in their ability to inspect by the severe budget cuts.

UNISON is also concerned that parts of the ACOP or guidance (as detailed below) has become less specific and will therefore introduce the potential for more uncertainty by employers as to what they must do. Similarly, there is a lack of reference to best practice when making records.

Response to the specific questions.

Q1.1) Is the draft ACOP and associated guidance sufficiently clear for you to be confident about how you can comply with the requirements of the HSW Act, COSHH Regulations 2002 and MHSWR 1999?

UNISON notes that Part 1 of the redrafted ACOP and guidance is less verbose and less heavy on unnecessary detail including for example how many different types of legionnaires disease there is. This is a welcome improvement, which will enable employers to more readily get the information they need for compliance with their duties. However, as already mentioned, there are areas (as detailed below) where the ACOPand guidance have become less specific and therefore will introduce the potential for more uncertainty by employers as to what they must do.

Q1.2) If not, which parts are not clear and why?

Despite the improvement noted above, the redrafted paragraph 14 on the production of water droplets (a risk factor with legionnaires) does not include the reminder that this risk factor needs to be considered not just during normal operation, but also during maintenance procedures. The inclusion of this fact is a useful reminder in the current version and should be included in the redraft. Indeed it is often periods outside of normal operation (such as cleaning and repairs) when risks are overlooked.

Q2.1) Are there any comments you wish to make on the method(s) of compliance described in the draft publication?

It is of concern that whilst the HSE has accepted that there is a place for good and best practice to be included within guidance, good or best practice advice on recording risk assessments is frequently left out or dropped on redrafts of HSE guides.

For example in the redrafted L8, the proposed guidance 43 on recording risk assessments does not mention the best practice of recording risk assessments even when there are less than five employees. This must be included within the redraft as there are several good reasons for an employer to record risk assessments beyond the prescription of the law, including: a reminder of what they did and why, making any future review easier, and as evidence that they have complied with their duty to risk assess.

Similarly, ACOP 70 includes a new reference to employees at particular risk vis-a-vis record keeping, but then mentions the “5 or more employees” criterion as applied to the regulatory requirement to keep records. Although it does go on to mention that it might be useful to keep the information recorded in a written format, it should go further by encouraging best practice by detailing the benefits of keeping a record even when there are fewer than five employees (as outlined just above).

Q3.1) Are there any impacts from the revision of this ACOP that we should be aware of?

The failure to adequately cover best practice when record keeping as described in the answer to question 2.1 risks employers being encouraged to just comply with the law, rather than undertaking best practice for which there are real benefits (as described above).

Some of the guidance (as detailed in reply to question 5.1) has been devalued in that it no longer makes reference to the frequency by when employers should take certain action. This will introduce more uncertainty for employers, especially SMEs who prefer to be guided in the detail of what they must do and when; with the risk that they are more likely to be found not compliant.

Q4.1) Do you think the aspects of guidance elevated to ACOP status are helpful?

Yes. It is UNISON’s experience that employers, especially SMEs, like to be very clear about what they must do to comply with their legal duties. Employers therefore welcome clear ACOPs which clarify how they can fulfil their regulatory duties. This in turn is welcomed by our members, as their employers are more likely to be compliant.

Proposed ACOP 38 on risk assessing and site surveys is therefore a welcome new addition and upgrade from the current guidance. It is also extremely helpful that previous guidance on the monitoring and inspection of the water system is proposed to be included in the new ACOP 65.

Q4.2) Do you agree with the ACOP material that now constitutes information or guidance?

UNISON also welcomes the new guidance which will aid employers to interpret the actions they must take under the regulations and ACOP. For examplethe proposed guidance 40 which explains the purpose of schematic drawings and draft guidance 61that has a new reference to emergency procedures.

Proposed guidance 41 on risk factors includes a new reference under those especially at risk, to cover residential and nursing homes. It is an important point that duty-holders must consider those at particular risk such as those more vulnerable due to advanced age or illness, and it’s inclusion in the redraft is a welcome reminder. Similarly, guidance 42 includes additional considerations when risk assessing which can only go towards assisting employers and duty-holders when they conduct the assessments. Lastly, guidance 74 includes a new reference on the results of biological monitoring which is welcome, making it clear that they should normally be recorded.

Q5.1) If you think there is a need for additional web or ACOP guidance, please explain briefly.

UNISON is concerned that in several places the guidance appears to have been weakened, and has become less clear and definitive for employers. For example the proposed guidance 47 on the review of risk assessments says this is to be done regularly. The current version says “and at least every two years”. Some employers will struggle with interpreting what is meant by regularly, so it would be useful to have some minimum guidance reinstated. If a minimum frequency of every 2 years is insufficient, than this could be easily amended.

Similarly the proposed guidance 53 on the implementation of the control scheme states that it should be monitored. The current guidance says regularly monitored. So the new provision will be weaker and less clear for employers, when even the current provision was probably in need of tightening up by providing guidance on the frequency for monitoring. This can be implemented in the proposed redraft.

Lastly, proposed guidance 66 says that the frequency of the monitoring will depend on the characteristics of the system, but the current requirement says “at least weekly”. Whilst UNISON accepts that different systems may necessitate different levels of monitoring, we believe that there must be an appropriate minimum level (possibly variable depending on the circumstanceof the system) which can be given in the guidance. Again this minimum guidance assists employers with knowing what to do and when as a minimum, whereas the proposed redraft would leave employers more uncertain and therefore found legally wanting.

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