Posted on

Will the new Food Law Code of Practice leave a bad taste in the mouth?

The Food Standards Agency (FSA) has introduced a revised Food Law Code of Practice (the Code) and at 158 pages, only the most determined of readers may wish to tackle it!

At face value it is a document which local authority Environmental Health Officers (EHOs) are much more likely than you to have on their desk.

However, it contains a variety of interesting developments, which, as a food business operator, you should be aware of.

As with most documents like this, the devil is in the detail and there are some useful changes, as well as worrying ones!

Usefully, the Code attempts to facilitate consistency across local authorities in relation to compliance and enforcement action.  For those of you who operate in a number of different local authority areas, this has to be welcomed and gives some hope that consistency of approach can be achieved when operating in different areas across the country.

It also indicates that those businesses with good food hygiene standards and compliance may find they have less frequent EHO visits.  As you have probably guessed, those in the past who have perhaps missed more regular and detailed scrutiny in terms of compliance are to face more inspection and intervention in the future, based on risk and non-compliance.

This is due to a new food establishment intervention scoring system, which determines the frequency  at which a business is visited.  As you would imagine, this is determined by using risk assessment criteria.  The local authority will assess the hazards, the level of compliance by the business to date, risks, and the confidence it has in the management structure of the business. 

These criteria produce a score and this in turn gives a rating which determines the minimum frequency for intervention.

In the past, individual local authorities determined the level of their inspections, however the Code is designed to provide a consistent benchmark to be used by EHOs throughout the country.

Overall, the message to take from the Code is clear.  If you have a good record of compliance and maintain it, local EHOs will have confidence in you to operate a business which complies with the law and the level of inspection will fall.  If none of those factors apply, you can expect more visits and if non-compliance is found, there will be further intervention and enforcement action.

As I have previously discussed in other articles regarding the new sentencing guidance, which applies to food safety offences, this is not somewhere any business needs to be these days!

 

Posted on

As if your business didn’t need another reminder to take care!

No one could fail to be aware, in recent weeks, of the spotlight placed on health and safety compliance after the disaster at Grenfell Tower.

Following very shortly after the terrible loss of life, the Sentencing Council has announced a consultation to agree on new guidelines for Courts sentencing those prosecuted for manslaughter.

Those of you following the Grenfell Tower case over the next months and years will hear much about corporate manslaughter, but, equally, much about gross negligence manslaughter. This is the offence which, unlike corporate manslaughter, places individuals in the dock.

The gross negligence manslaughter consultation and, ultimately, the guidance will be designed to produce more consistency when dealing with offenders for this offence.

We will keep you posted as to how the consultation and guidance progresses, but one thing which is clear is the criteria that the Courts will use when assessing the culpability of offenders. If you seek to save costs while avoiding adequate safety arrangements, allow failures to persist for weeks or months or longer than necessary, or if you are in  a dominant position within a business such that you are able to influence the situation and remedy issues and don’t, the Courts will take a dim view of this and reflect it in any sentence handed down.

The message is clear and will be repeated in the months and years to come, with anticipated prosecutions arising from events such as Hillsborough, Grenfell Tower and others.

Ensure that you have a robust system to deal with health and safety issues, make sure you have competent advice in framing these systems and the auditing of them. Always carefully consider issues where health and safety plays a factor and ensure you can evidence your decision-making process when deciding on one course of action over another.

Only a couple of years ago, it was a government pledge to reduce red tape and bureaucracy to allow businesses the freedom to be entrepreneurial. I noticed only the other day a call by a number of pressure groups to disregard this pledge and more heavily regulate businesses and organisations in the area of health and safety.

Agree with it or not, stringent regulation with severe penalties is here to stay.

 

Posted on

It may not happen to someone else

The latest statistics produced by the Health and Safety Executive on fatal accidents in the workplace show that 137 people died at work in the 12 months up to March of this year.

This does not include members of the public who also died as a result of work-related accidents, the number of which stands at 92. Taking these two figures together and considering the 541 (2015 figures) people who also died whilst driving  at or connected with work, the figure is a troubling 770 deaths.

Having spent my professional life dealing with the aftermath of fatal accidents for organisations involved in the death of an employee or a third party, I cannot overestimate the impact such an event has on an organisation.

Studies conducted show that, for every pound which an organisation ultimately pays in terms of a fine arising from a prosecution, there are unseen indirect costs arising from factors such as increasing insurance premiums, legal expenses, welfare costs, lost productivity and HR issues: the list goes on.  These unseen costs outweigh the actual fine many times over. 

In addition to this, the tremendous amount of time that needs to be devoted by senior management within the business to deal effectively with the investigations by, for example, coroners, police or the local authority, together with managing any civil claims, quite apart from internal issues, is all-consuming. Especially when you are trying to run your business simultaneously.

The much-hackneyed warnings of health and safety lawyers  about having  good H&S systems are worth listening to.

However, with that advice comes another important step that organisations need to take if an accident occurs  – correctly resource the issue internally, obtain specialist advice, speak to your insurers, speak to your lawyers and ensure that you have a team ready, both internally and externally, to be able to deal with the aftermath of a workplace fatality, which will take years not weeks or months to resolve.  Trust me!

 

Posted on

Food Standards Agency publishes Local Authority Enforcement Data

The Food Standards Agency has published food law enforcement data from Local Authorities for the year 2016 to 2017. The link below will take you through the Food Standards Agency website where you can find the interim enforcement statistics for 2016/2017 on UK Food Hygiene Data and UK Food Standard Data.

https://www.food.gov.uk/enforcement/monitoring/laems/mondatabyyear/interim-enforcement-data-2016/17

This data is released ahead of the full statistical report by the Food Standards Agency, which will be available later in July. The Agency has a significant plan to improve transparency when presenting individual Local Authority food hygiene and food standard statistics. This is part of an initiative to assist Local Authorities in understanding their powers and to give them the ability to benchmark themselves against other Authorities.

What is clear from previous comparable reports is that there is a growing enforcement drive in regulatory food law. Operators should be looking closely at the data to see whether they are in an authority area which is keen to lead with formal prosecutions. We cannot be more robust in our advice. Please do not wait until you receive your prosecution before instructing lawyers to help with these matters. With the significant increase in potential fines upon prosecutions it is more imperative than it has ever been for you to seek legal advice at the earliest sign of potential interaction with a Local Authority. It is very much in operators’ interests to have representation through any investigation proceedings and formal interviews. We have seen recently operators undertake these elements themselves, perhaps in the hope of making a potential costs saving, however, this can often lead to a significantly more expensive end bill when facing prosecutions at Court. By this stage, if we haven’t been involved from the outset, it can often be difficult to prepare a robust defence or mitigation. It is critically important that advice is sought as soon as the issue is flagged up by any Local Authority interaction.

The data show that there have been a disproportionately large number of prosecutions in certain areas of the country, which is reflective of the range of approaches taken by different Local Authority areas.

There is still a high number of premises being dealt with by written warnings, particularly in the London Boroughs, with, in 2016-2017, Havering writing letters of warning to 763 premises, Hounslow 721 premises and Tower Hamlets 1,310 premises. There are significant variations throughout the country and we await the full statistical report.

If operators need assistance in due diligence to avoid warnings and prosecutions, or representation throughout the regulatory enforcement process, then please do not hesitate to contact me at james@woodswhur.co.uk or on 07702 802506.

Posted on

Terrible atrocities in the UK have a bearing on licensed premises

Andy Woods and I were walking to Clerkenwell for meetings on the day after the Grenfell Tower fire. It hit us both pretty dramatically as we were walking through central London to think that, only four miles away from where we were, the terrible scenes at the Tower were unfolding. It’s very easy to take for granted, when walking around London, what might be happening outside your own sphere of activity. This feeling was underlined the following day, when I noticed the anti-tank blocks that had been placed on Waterloo Bridge, as I was walking over to Waterloo Station.

It was only when we were having a meeting with one of our most significant clients, fabric, that Andy and I started to realise the huge impact that the fire and terrorist activities were having on licensed premises. The guys at fabric were telling me that they have had 24 hour, 7 days a week security at the premises ever since the Bali bombing, and are acutely conscious that they provide a potential target for the ongoing terrorist threat. This is not something that operators of mine and Andy have had to deal with until relatively recently. It brought this into sharp focus when I looked at the operating manual for fabric and saw the security measures that have been put in place, not just for trading nights, but to ensure that the premises are maintained as a safe environment.

I was then talking to the managing director of Arc Inspirations, Martin Wolstencroft, and he was telling me of the profound effect the Manchester bomb had had on their staff. Their Banyan premises are very close to the site of the Arena bombing and the immediate aftermath was felt first hand by their fantastic staff. Martin and Anni were on the way over to give their staff the support they needed after dealing with circumstances they would have never envisaged having to deal with until that night. I know that Anna’s clients at the Manchester235 Casino also helped many of the walking wounded who ended up at their premises as they fled that attack. Continue reading Terrible atrocities in the UK have a bearing on licensed premises

Posted on

Can you afford it?

The introduction of the sentencing guidelines for health and safety, food safety and corporate manslaughter offences last year has resulted in previously unseen increases in fines handed down by the Courts for those in breach. These sentences are likely to become the norm, rather than the exception.

The guidelines, which create a nine-step process for Courts in deciding on sentences, now clearly and directly relate an organisation’s turnover or individual’s income to the level of fine to be imposed.

By way of example, organisations with a turnover of £50 million per year or over can potentially be exposed to £10 million fine or greater, in relation to corporate manslaughter. Even smaller organisations, where turnover does not exceed £2 million per year, can still be exposed to fines measured in £100,000s.

Anyone watching or reading the news in the past year cannot fail to have seen fines handed down by the Courts to significant businesses in the leisure industry, such as £5 million to Merlin Entertainment for the accident at Alton Towers. When preparing this article, I noticed reports of several small operators being fined over £100,000 as a punishment for offences.

The introduction of the guidelines has produced some troubling statistics for those who may face a regulatory prosecution. In the last 12 months, businesses within the leisure sector alone have paid fines of over £7 million.

Health and safety prosecutions in 2015, prior to the introduction of the guidance, showed an average fine of just under £70,000 per case, whilst the figure for 2016, when the guidelines became applicable, shows an average fine of just under £250,000.

Financial penalties for a business are not the only redress available to the Courts, and for individuals prosecuted under the same legislation, imprisonment, together with financial penalties and other sentencing options, are available. There has been a number of cases with those persons involved in health and safety failings being imprisoned since the introduction of the guidelines, and this undoubtedly is set to continue.

The message is clear: the introduction of the guidelines has made the direct costs of a prosecution so great that the viability of some businesses and the liberty of those involved in the management of them might well be affected. It is an area of your operations that you cannot afford to ignore, quite literally at your cost.

I can only recommend that if facing any regulatory investigation it is imperative to seek specialist advice at the earliest opportunity. We can often assist in ensuring that an investigation is dealt with in such away to avoid prosecution. If this can not be avoided we can help to prepare a robust defence to any subsequent prosecution. In the worse case scenario we can help to ensure that a structured mitigation is put in place to reduce the impact of these increases in sentencing powers.

Please do not hesitate to get in touch with me at james@woodswhur.co.uk

Posted on

Woods Whur introduces specialist regulatory Partner James Thompson

Andy and I started to analyse our business closely last October as we celebrated our 5th Birthday at Woods Whur, and prepared our next 5 year business plan. Anna Mathias joining us in 2015 had given us the opportunity to invest in a London presence and, importantly, Anna has grown our gambling practice into areas in which we had not previously had exposure. We saw this as a key success in the five years since we set up Woods Whur and set to thinking of how we could replicate that success.

One of the key shifts in our workload has been the amount of regulatory enforcement advice and representation we have been seeing in the leisure sector. We are seeing far more regulatory control and prosecution across all of the sectors where we advise clients: not just the alcohol and entertainment sector, but the gambling sector too, as the Gambling Commission started to show its teeth against those they thought infringed regulation.

Andy, Anna and I have strong practical experience of advising and representing in regulatory matters, but we felt that the introduction of a specialist Partner level lawyer and support team was vital to the development of Woods Whur. We also had a look at our specialist competition and felt that we could add more value to our existing clients and become stronger in marketing to new clients, while stealing a march on the opposition!

It is all well and good to have that aspiration but putting this into practice was going to be harder than coming up with the idea. We were helped by Tony Brooke of Florit Brooke. Tony understood our requirements and introduced James Thompson and Vinnie Schumacher separately to me. Once Andy and I had met them both we could see that their aspirations were identical to ours and that their dedication to client care mirrored what we believe in.

James is highly rated by Chambers 2016 and has been lauded as a Recommended Lawyer by the Legal 500 for 2016 for health and safety and regulatory law. He joins us from International Law Firm, Clyde and Co, to be our Head of Regulatory Law. This sees Woods Whur set up a specialist department to deal with all aspects of regulatory, health and safety and food safety law. Vinnie joins us to support James and we have also brought in Sarah Griffiths to support them both in our administration team. Vinnie qualified as a Barrister and Solicitor in New Zealand in March 2014 and worked at the largest law firm in New Zealand, Simpson Grierson, where he was actively involved in the Commercial Property and Commercial Litigation Teams. Vinnie gained significant experience representing commercial clients, with exposure to Simpson Grierson’s Blue Chip client base.

James is a specialist in the field of corporate crime, dealing with matters ranging from advising directors accused of manslaughter to assisting organisations faced with high profile and complex inquests. James has particular expertise in healthcare, retail and industry, and is a Solicitor Advocate who conducts a significant amount of his own advocacy.

James specialises in all aspects of criminal regulatory law, in particular health and safety law, and his client base covers the breadth of the public and private sectors, from retail and education to chemicals and manufacturing. He has extensive experience advising public and private healthcare providers on health and safety and regulatory compliance.

This was very exciting for us, as we got to discuss in depth where regulatory enforcement was going. We thought that his skill set was hugely important for us to be able to offer to our client base. Two late night operator clients of ours have already sought out his advice and he is undertaking some high end representation for them. We have already been approached by one of our public sector clients in relation to food safety advice and prosecutions and can only see the demand for our services growing.

James highlights in his article for this edition of our Newsletter the massive impact on our clients that the recent changes in the sentencing guidelines for health and safety, food safety and corporate manslaughter offences could well have. Those changes have resulted in previously unseen increases in fines handed down by the Courts for those in breach. These sentences are likely to become the norm, rather than the exception and, as James stresses, it is critically important to get specialist advice very early in the process.

Andy and I believe this gives us the opportunity to add significant value to our client base as we have now created this specialist department within the firm. The other benefit is that we have been able to open up a presence in Newcastle. This is a great commercial and leisure market where we are already strong, but now aim to grow our client base.

Of critical importance to Andy and me is the endorsement of us, given independently, that “the client is at the heart of everything they do”. We genuinely believe that we have enhanced our status with these appointments…and the other benefit is they are great people who have slotted into Woods Whur as if they have always been here.