Statement from East Ayrshire Council regarding Kilmarnock Leisure Centre Trust health and safety prosecution
Following media, and social media, interest around the health and safety prosecution involving trustees of the Kilmarnock Leisure Centre Trust at Kilmarnock Sheriff Court yesterday, East Ayrshire Council wishes to set out the factual and legal position relating to that case.
Five of the six Trustees of the Kilmarnock Leisure Centre Trust (“the Trust”) are Councillors who were appointed by the Council. When they sit as a Trustee and carry out functions on behalf of the Trust, they are not acting as Councillors.
The Councillors' Code of Conduct is therefore not applicable during those periods, and any reference to the Councillors’ Code of Conduct is not relevant.
Further, the Trust formed part of the recent Culture and Leisure Review undertaken by the Council and, until recently, operated leisure facilities from the Galleon Leisure Centre in Kilmarnock. The Councillors in their capacity as Trustees do, and did, not exercise day to day operational control of the Leisure Centre.
Instead, they provided strategic oversight of the Leisure Centre business and left the day to day operational control of the premises to the Trust managers and staff. They were therefore not present in the pool area of the Galleon Centre on 10 January 2023 when the accident during the Jets Swim Session took place.
It was the responsibility of managers and staff within the Galleon Centre to ensure ongoing day to day compliance with the Health and Safety legislation, and internal arrangements were in place to ensure appropriate strategic oversight and governance of those matters took place by the Trustees.
Accordingly, the Trust had health and safety processes, procedures and risk assessments in place. However, there were deficiencies in the way that they were dealt with in the Leisure Centre on a day to day basis by staff.
Given the way that the Trust is constituted, the Trustees were held liable in health and safety law for the deficiencies in the way that processes, procedures and risk assessments were dealt with in the Leisure Centre on a day to day basis by those staff.
This led to the health and safety prosecution yesterday – even though the Trust is in the process of being wound up, with functions, staff and property either having been, or in the process of being transferred to East Ayrshire Leisure, following the agreement of the Trustees to dissolve the Trust on 1 April 2025 subject to the conditional agreement of the Office of the Scottish Charities Regulator (OSCR).
This prosecution has resulted in a fine being imposed by a Sheriff at Kilmarnock Sheriff Court in the sum of £11,825.00, which will now be paid from monies reserved by the Trust for that purpose.