If you run a food business, receiving a visit from the Environment Health Officer (EHO) is stressful and that stress only escalates if the visit ends with paperwork being handed to you.
If the EHO believes you have breached food safety or hygiene laws or regulations, they may serve you with an Improvement Notice or Prohibition Notice and these are not just warnings; they are formal legal action and you must take immediate action.
Your defence to such allegations will almost always hinge on one thing, your documented food safety management systems and records. That is why my advice to all the food businesses Nockolds act for is that you must start working on your defence now as waiting until a Notice is served is too late.
What is an Improvement Notice?
An Improvement Notice identities breaches in food safety management systems, which require improvement to comply with the law. The notice specifies what you must do to remedy that breach and the timeframe for doing so. Failure to comply with it is a criminal offence.
What is a Prohibition Notice?
A Prohibition Notice is served where there is an imminent risk to health. This can close your business immediately or prohibit processes or stop use of specific equipment. Within days, the local authority must apply to the Magistrates Court for confirmation of the Order.
As well as prosecuting for non-compliance with a notice, a Local Authority can prosecute for the alleged breaches even if the notice is complied with.
Paperwork is the crux of your defence. When enforcement action is taken, the key question becomes “can you demonstrate that you had adequate systems in place and were exercising due diligence”? This is called your due diligence defence.
In simple terms, you may have a defence if you can prove that you took all the relevant precautions and exercised all due diligence to prevent the offence. This is based on what you can evidence, i.e. the paperwork you have. For example, an Environmental Health Officer will expect to see your HACCP, your temperature management records, your cleaning schedule, staff training records, pest control records etc. That list is far from exhaustive.
If your paperwork is missing, incomplete or not followed in practice, your position will be weakened significantly.
Informal practices and / or an attitude of “everyone knows what they are doing” or “we learn through word of mouth” or “we have never had a problem before” is not going to be enough and are unlikely to amount to a successful defence.
When our clients in the food sector approach us after enforcement action has been taken, we first look at their documented systems that were implemented and monitored because this is what the court will look for. The court will look at the paperwork and records and how these were implemented at the date of the Inspection.
You cannot rely on putting systems or documents in place after the alleged breach.
Your best defence is having:
- Accurate consistent real time records
- Signed and dated documents
- Evidence of monitoring and corrective action
- Regular internal checks
So review your processes today!
Enforcement action is stressful, costly and reputation damaging. Having the right documentation in place can make the difference between a local authority taking enforcement action in the first place or deciding to prosecute or, if action is taken, whether the business is convicted or not.
Take time out of the day to day running of your business and check the documents and procedures you have in place and then check those procedures are being implemented.
If you do find yourselves faced with any enforcement action from a local authority, the team at Nockolds can assist. We quickly demonstrate the documents and procedures your company already has in place and collaborate with specialist barristers and food experts to build the strongest strategy possible. Our goal is to help you navigate enforcement efficiently and resolve matters as swiftly as possible.