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£1.5 million fine signals increased penalties for food hygiene failings

Mitchells & Butlers (M&B) felt the force of the court's sentencing powers recently when it was fined £1.5 million for placing food unfit for human consumption on the market, in breach of food safety regulations. The prosecution followed a tragic Christmas Day turkey food poisoning incident, which caused the death of one person and left a further 33 people ill.

The level of the fine reflects the risks involved when mass caterers in the leisure sector fail to ensure that their food hygiene procedures are adhered to at ground level.

The prosecuting authority, London Borough of Havering, accepted that had M&B's food safety procedures been properly followed, the incident could have been avoided. However the mere presence of these procedures was insufficient to protect M&B from prosecution and a significant fine.

This judgment shows that large organisations cannot blame serious food hygiene failings on the errors of the individuals concerned.

In this instance M&B had a case for arguing that the incident was attributable to the poor conduct of the individuals concerned. The pub manager and chef were in fact imprisoned for perverting the court of justice after it emerged that they had tried to destroy and falsify evidence. Nevertheless, the jury, guided by prosecutors, took the view that M&B should have taken active steps to ensure that members of staff were adequately trained and aware of the risks. Given the severity of the fine, the judge obviously agreed.

Minimising the risks

If an organisation does place food on the market which is unfit for consumption (as in this case) the burden is on the organisation to prove that its internal food hygiene procedures were sufficient. In other words, the company would have to prove that there was nothing more it could reasonably have done to prevent the incident from happening. As you can imagine, this can be very difficult to prove.

Large scale caterers therefore need to think carefully about how their food hygiene procedures work in practice. Having strict hygiene rules in place is a good start, but this will count for nothing if it appears to a local authority that the company has not checked that its procedures are actually being complied with at kitchen level. For example, are regular health and safety audits carried out? Does the organisation take a "zero-tolerance" approach to poor hygiene and discipline members of staff who fail to comply with the company's policies?

Last year's annual report on food law enforcement by local authorities revealed that a total of 411,077 interventions were carried out in respect of food hygiene in the year 2013/2014. Although only a small number of these interventions actually led to prosecutions, food based organisations should be aware that local authorities are proactive about enforcing food safety and hygiene laws.

Sentencing guidelines

The large fine in imposed on M&B in this instance is part of a general trend towards tougher sentencing for organisations that commit regulatory breaches.

Organisations involved in the sale of food to consumers should be aware that the Ministry of Justice's Sentencing Council is currently consulting on new sentencing guidelines for food safety and hygiene offences. The consultation is due to end on 18 February 2015. The new guidelines, which are expected to be finalised later this year, are likely to result in higher fines across the board but will particularly increase fines for organisations with high annual turnovers.

Under the proposed guidelines fines will be pegged to the offending company's annual turnover, meaning that higher grossing companies will pay more. The highest possible fine band under the proposed guidelines for food safety and hygiene offences is between £500,000 and £3 million, which would apply to organisations with an annual turnover of above £50 million.

Importantly, large and medium sized companies will also face higher fines for minor, technical breaches under the new guidelines. This makes complying with food safety and hygiene law more important than ever. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

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