Emerging from Lockdown – The Leisure, Health and Fitness Industry in England and the Republic of Ireland

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Emerging from Lockdown – The Leisure, Health and Fitness Industry in England and the Republic of Ireland

Published 9 September 2021

As we embrace life starting to return to normal, many of us are also returning to gyms, swimming pools and exercise classes.  Due to the risk of virus transmission being higher indoors, one of the biggest concerns experts have is the level of ventilation inside.  Whilst COVID-19 risk cannot be eliminated entirely in gyms and leisure centres, it can be mitigated and minimised with appropriate measures and communications.

Within that context, this article aims to explore and contrast the legal obligations and guidance arising from the re-opening of the Leisure, Health and Fitness Industry in England & Wales and the Republic of Ireland.  It also sets out some of the key risk mitigation steps the industry should consider as it follows the roadmap for reopening business in line with government protocols in two different jurisdictions.

Legal Framework

In the first instance it is worth considering the respective statutory legal duties that the fitness industry currently has in England & Wales and the Republic of Ireland.

England & Wales

  • The Occupiers’ Liability Act 1957 imposes a duty of care on the occupiers of a premises to take ‘such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’
  • In relation to the duties of employers, The Health and Safety at Work Act 1974 imposes a duty of care on employers to provide a safe system of work.
  • The Management of Health and Safety at Work Act 1999 stipulates that employers must make a suitable and sufficient assessment of risk covering any health and safety risk to which employees are exposed to whilst they are at work. Health and safety arrangements should have regard to the nature of the activities and the size of the undertaking.
  • The Personal Protective Equipment Regulations 1992 stipulate that where the risk of harm cannot be controlled by other means an employer must provide its employees with suitable PPE.
Republic of Ireland
  • The Safety, Health and Welfare at Work Act 2005 imposes general duties to have a safe place of work with appropriate training and equipment. It stipulates that employers must “ensure, so far as is reasonably practical, the safety, health and welfare at work of his/her employees”.  Of particular note is that section 19 and 22 of the Act requires a risk assessment be performed and that if necessary on foot of that risk assessment, health surveillance measures be implemented..  The Act also requires that an employer provide appropriate personal protective equipment if necessary.
  • The Occupiers Liability Act 1995 provides obligations on occupiers of a premises to take reasonable care for persons entering onto a premises and to ensure, insofar as is reasonably practical, that they do not suffer injury due to any danger existing on the premises.
  • The Health Act 1947 is a further key piece of legislation that contains the legal force behind our Ireland’s restriction regulations.  Section 43 allows a person to initiate civil proceedings for damages if the other person has failed to take actions required by them pursuant to Regulations which result in the first person being infected with a disease.  Given that COVID 19 is declared to be an infectious disease subject to statutory control and the Infectious Diseases (Amendment) Regulations 2020, it is foreseeable that the courts will apply a rebuttable presumption that the person who failed to take the actions required caused the first person’s infection.  Therefore any breach of the Health Act or the regulations by an employer could lead to a civil liability if it resulted in a COVID-19 infection.

General Principles for Re-Opening

England & Wales

For England & Wales, the government’s roadmap for the easing of lockdown restrictions consisted of four steps.  The fourth step came into effect on 19 July 2021.  All sports and leisure facilities were permitted to reopen with no restrictions on indoor or outdoor capacity.  All forms of activities could also take place without any set restrictions.

The government has issued guidance in relation to measures for grassroots sport participants, providers and facility operators.  A link to the guidance is here. The guidance is designed to assist sport and leisure providers to reduce the risk of transmission of COVID-19 as much as possible and allow participants to take part in activities safely.

Republic of Ireland

The Government of Ireland recently announced a plan for the phase of re-opening called Reframing the Challenge, Continuing Our Recovery and Reconnecting.  This is the Government’s plan to end most COVID-19 restrictions by 22 October.  A cautious approach to re-opening is being adopted and from 20th September organised indoor group activities (exercise, sports, arts, culture, dance classes) can take place with capacity limits of 100 people with appropriate protective measures and where all patrons are immune (fully vaccinated or recovered from COVID-19 within the previous 6 months), or accompanied minors.

Where participants in group activities have mixed immunity status, pods of up to 6 participants will be permitted (excluding adult leaders/teachers).  Multiple pods will also be permissible, subject to protective measures.  The number of pods will have regard to the size of the venue and both social distance between individual pods and 2m distancing between individual participants is to be maintained.  

In line with the Irish Government’s Resilience and Recovery Plan 2021. Leisure, Health and Fitness businesses in Ireland must ensure that ongoing protective messages are in place.  They should deal with facility capacity, physical distancing protocols, one-way traffic systems cleaning and disinfection protocols and health screening for staff and facility users amongst other things.

Furthermore the Irish Government’s most recent Work Safely Protocol covers general return to work obligations.  Each workplace is required appoint at least one Lead Worker Representative (LWR) who will work with the employer to ensure that COVID-19 measures are strictly adhered to in the workplace.  Employers are also required to put a Response Plan in place that addresses the level of risk associated with various workplaces and work activities and outlines details of how they will deal with a suspected case of COVID-19 in the workplace.

In addition, the Health and Safety Authority (HSA) has published a number of COVID-19 templates and checklists for organisations re-opening businesses which should be referred to and utilised.

Practical Guidance

Sport England provides a helpful current guide to the latest government guidance which can be found here.

Ireland Active is the national association for the Leisure, Health and Fitness sector in the Republic of Ireland and has developed a living framework document for the safe operation of Leisure Centres and Health and Fitness Facilities in line with Government protocols.  The document can be viewed here and is a vital resource for facility operators.

A summary of risk mitigation guidance in the respective jurisdictions can be viewed below:

Gym/Studio Areas

Measure

England

Republic of Ireland

Social Distancing

No longer required.

Social distancing of 2m to be maintained.

Ventilation

Make sure there is a supply of fresh air to enclosed spaces – open doors, windows and air vents where possible.

Identify any areas of poor ventilation and take steps to improve air flow.

Ensure adequate ventilation, avoiding recycling of air to avoid possibility of infection.

Cleaning

Increase cleaning of surfaces especially those that are touched a lot.

Providing additional hand washing facilities/sanitiser, particularly in high traffic areas.

Carry out more frequent cleaning of surfaces and wipe downs of contact surfaces with single use disinfectant wipes or strong disinfectants and microfibre cloths.

Towels/Bottles

Users to avoid sharing water bottles – advise participants to bring their own.

Users should not share towels, water bottles.

Exercise Machines

Spacing of 2m between equipment is no longer required.

Equipment should be cleaned after each user – use notices to remind people to do this.

Spacing of exercise machines/equipment should be undertaken to ensure 2m distance in between equipment.

An alternative may be to use every second piece of equipment or the closing of certain stationary equipment to ensure 2m distancing.

Loose Equipment

Encourage cleaning of balls or other equipment at regular intervals.

Avoid sharing equipment if possible and clean after each user.

Loose equipment such as dumbbells, kettlebells, free weights et. should be used by one exerciser and cleaned in between each use by users/staff.

Underlying Health Conditions

Individuals to follow government advice – no track and trace requirement but still encouraged to display an NHS QR code.

Turn people with COVID-19 symptoms away – clearly communicate that customers and staff must not come to the premises if they are required to self-isolate or have any symptoms.

People with disabilities and individuals with underlying health conditions should follow government advice regarding COVID-19.

The facility may wish to employ specific dedicated hours for vulnerable users.

Booking

No specific guidance.

Booking of time slots should be employed in order to enable safe management and recording of users in the facility.

Face Coverings

No legal requirement for face coverings to be worn – staff and customers may choose to do so.

Face coverings recommended for crowded and enclosed settings.

(Wales – face coverings still currently a legal requirement indoors)

Where spotting of weights is being undertaken, face coverings should be worn.


Personal Training/Exercise Classes

Measure

England

Republic of Ireland

Internal Flows

Consider using screens or barriers where appropriate and keeping activity times to a minimum if possible.

Consider one way systems to reduce crowding.

Exercisers/participants should not congregate before or after classes/activities, and facilities should design internal flows to reflect this (e.g. one way systems).

Start / Finish Times

Put in place measures to reduce contact between people where practical.

Staggered start and finish times combined with appropriate entry, exit and traffic management protocols to limit the interaction of participants at any one time.

Duration

Keep to a minimum if possible.

Reduction in the overall duration of the activity.

Space

No specific guidance.

Activity should take place in a predefined area which is directionally signed.

Social Distancing

No longer a requirement.

There should be in excess of 2m social distancing between each of the predefined areas.

Ventilation

Ensure fresh air to enclosed spaces.

Identify any areas of poor ventilation and take steps to improve air flow.

Additional ventilation through the opening of all windows/doors etc. (where available).

Physical contact

Should be avoided where possible.

Hands-on adjustments or physical contact during group fitness classes or personal training sessions should be avoided where possible.

Spin Bikes

No requirement for 2m spacing.

Spin bikes should be staggered and spaced 2m apart to avoid spray back.

Contact tracing

No track and trace requirement but individuals still encouraged to display an NHS QR code.

Details of each personal training session should be maintained to assist with any possible contact tracing.

Booking

No specific guidance.

Pre-booking of sessions with a gap in between to allow for cleaning.

Outdoor activities,

No limit on numbers for outdoor activities.

Outdoor fitness training in pods of 15 is permitted.

Multiple pods of 15 can be put in place for an outdoor activity once there is sufficient space and there is no mixing of pod members, including coaches/instructors.


Swimming Pools

Measure

England

Republic of Ireland

Chlorine Levels

Adherence to appropriate chlorine level guidelines.

Adherence to the appropriate chlorine level guidelines.

Recommended Pool Chemical Levels: Free Chlorine – min 1.5mg/l, pH- 7.0-7.4 (As per Swim Ireland Pool Operators Guidelines).

Social Distancing

No limit on capacity.

Social distancing in pool areas should be maintained in addition to reduced capacity, with a maximum bather load on initial opening in line with Swimming Pool Safety Guidelines.

Family Swimming

Permitted.

Where a child is of preschool age or younger and requires full support from parent/carer, this pair can be considered as one unit for the purpose of bather load.

Lessons

Permitted.

Swimming lessons for children should only commence following a risk assessment and further protocols issued by government on children’s group activities.

Disinfection

No specific guidance.

Disinfection of Pool Equipment: Risk of infection should be assessed and the appropriate chemical and duration for disinfection identified along with equipment cleaning.

Showers

Regular cleaning of showers, toilets and changing rooms with a visible and up to date cleaning schedule.

Pre-Swim Showers are encouraged either at the facility or at home whilst maintaining the statutory physical distancing.  

Operators should provide soap dispensers in shower areas to encourage a ‘wash’ rather than a rinse prior to entering the pool.


Sauna/Steam Rooms/Spa Facilities

Measure

England

Republic of Ireland

Capacity

No limit on capacity.

Limit capacity (e.g. one user/same family group).

Social Distancing

Not a requirement.

Social distancing of at least 2m being maintained.

Cleaning

Regular cleaning of surfaces.

Regular cleaning in between use.


Showers, Lockers and Changing Rooms

Measure

England

Republic of Ireland

Layout

No specific guidance.

Consideration of the size, style as well as the layout of changing rooms to determine changing room capacities, enabling social distancing to be respected by customers and time allocated for cleaning.

Home Showering

No specific guidance.

To minimise the use of changing rooms and congregation, users should arrive to the gym dressed and should be encouraged to shower at home.

Changing

No specific guidance.

Beach style changing for swimmers (swimming costume underneath your clothing) should be encouraged to minimise time in changing rooms.

Lockers

No specific guidance.

Spacing in between lockers or alternate use should be in place to ensure social distancing.

Shower time

No specific guidance.

Encourage to reduce time spent in showers and changing areas and highlight that shower usage is only for the rinsing of chlorinated water after pool usage.

Markings

No specific guidance.

Shower area to have clear marking indicating social distancing in communal shower area or the use of individual cubicles can help ensure 2m social distancing.

Hand Sanitiser

Provide hand washing facilities and hand sanitiser particularly in high traffic areas.

Provide washing facilities and hand sanitiser in changing area.

Shared facilities

Permitted with regular cleaning to be undertaken.

Changing rooms, showers and toilet areas to be kept well ventilated.

Shared facilities such as spin dryers and hairdryers should not be available.


Conclusion

In comparison to the current advice and easing of rest restrictions in England & Wales, it is notable that in Ireland a more cautious approach is being adopted for the re-opening of gyms and fitness centres in line with government guidelines. 

Nevertheless it is clear that in both jurisdictions, gyms and leisure centres are encouraged to provide as a safe an environment for users / customers and members of the facility as possible as we emerge out of the pandemic.  With that mind all businesses are advised to update their risk assessments and safety statements to take account of all matters pertaining to COVID-19 risk going forward.   

Failure to implement appropriate health and safety measures as outlined above carries legal risks for the company/facility and its officers.  Ultimately, the obligation is on any individual facility to demonstrate that it did all that could be reasonably expected of it in the circumstances to reduce the risk of transmission to both their customers and employees.  As government restrictions and public health guidelines evolve, changes to protocols should be monitored as they emerge.

Authors

David Kennedy

David Kennedy

Dublin

+353 (0) 1 231 9630

Catherine Jennings

Catherine Jennings

London - Walbrook

+44(0)20 7894 6693

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