Corker Binning partner Nicola Finnerty and solicitor Gemma Tombs write in Caterer and Hotelkeeper about food safety legislation and the risks for businesses which don’t comply.
Don’t forget food safety management procedures
Last month’s record fine for a Chinese restaurant in Greenwich for its inadequate food safety management procedures highlighted the power that local authorities have to close down food businesses. Solicitors Nicola Finnerty and Gemma Tombs explain how to keep on the right side of the law
Visitors to my restaurant have recently complained of severe food poisoning after dining with us. I am concerned that my kitchen is not up to scratch but also that I could face an investigation by the council. What can I do to improve my kitchen and what action can be taken against me?
The primary legislation governing food safety in the UK is the Food Safety Act 1990. This says that food businesses must ensure that:
- They don’t include anything in food, remove anything from it or treat it in any way which would be damaging to the health of the people eating it.
- The food is of the nature, substance or quality which consumers would expect.
- The food is labelled, advertised and presented in a way that is not false or misleading.
Businesses must put in place procedures which manage food safety and ensure ongoing compliance with the food hygiene legislation. These procedures need to be based around a set of internationally recognised food safety principles known as the HACCP principles.
All food businesses are subject to regular food hygiene and standards inspections and audits by environmental health officers, usually from the local authority. These visits are always unannounced and are triggered by the lapse of time since the last inspection or by a complaint from a consumer.
If the inspection reveals breaches of the legislation, the local authority has a number of options about how to enforce it:
- A hygiene improvement notice or improvement notice. This sets out the breach and what the recipient is required to do to put it right, within a set time period. Any failure to comply with the notice is a criminal offence.
- A hygiene emergency prohibition order. Used if there is evidence of an imminent risk of injury to health (such as an infestation of rats, or very poor structural conditions). This order can only be granted by a magistrates’ court and the effect is to close down the business or prevent the use of certain equipment or processes.
- Prosecution is the last resort and the most serious. The local authority takes into account the seriousness of the offence and the alleged offender’s history before deciding to prosecute.
Officers also have the power to enter any food business premises to see if a breach has occurred and to take food samples and submit them for analysis.
Food businesses caught unaware and unprepared for inspections by their local environmental health officers can suffer severe consequences. It is, therefore, better to invest time and money putting in place, and then ensuring, compliance with food management and safety procedures. Inevitably mistakes do happen no matter how careful you are but evidence that you have a system in place will do much to mitigate any breach.
- Food businesses must identify all potential food safety hazards in their workplace. This should include a thorough review of the maintenance of the premises, cleanliness, food storage, training of staff and procedures for waste and pest control.
- Clear procedures and steps must be put in place with the aim of minimising the risk of any of these identified hazards occurring. These procedures should be set out in writing and reviewed on a regular basis.
- Staff must be fully trained in how to deal with problems when and if they arise.
Failure to comply with the hygiene regulations is a criminal offence, as is failing to comply with many of the notices which may be issued as a result. An individual convicted in the magistrates’ court of an offence contrary to the regulations is liable to a fine up to £5,000. If the matter proceeds to the crown court then the maximum sentence is two years in prison and/or an unlimited fine.
Nicola Finnerty is a partner and Gemma Tombs is a solicitor at Corker Binning