Food hygiene breaches represent a major concern for hospitality and leisure sectors; incidents bring bad publicity and legal action can result in heavy fines.

A landmark case was the £1.5m fine imposed on Mitchells and Butler following the death of a diner after a Christmas lunch in 2012, at one of its venues, where food hygiene had not been properly observed. Reheated turkey provided an ideal breeding ground for clostridium bacteria which also caused 30 others to become seriously ill.

This incident did not end with a substantial fine; in 2014, the venue’s chef and manager were jailed for perverting the course of justice, and claims against Mitchells & Butlers for negligence by the dead women’s family are currently still ongoing.

Any operator flouting health & safety in future can expect to be taken to task as a result of new guidelines, which change the way fines in such cases are calculated.

New Sentencing Council guidelines

There has been concern that the penalties given for food safety offences have often been too low. From 1 February 2016 this changes as new guidelines have come into force.

The Government has introduced new sentencing guidelines which will particularly impact on large organisations convicted of serious health and safety and food hygiene offences.  Sentencing levels will be increased to ensure that the sentence is proportionate to the offence, with fines now taking into account the financial circumstances of the offending organisation as well as its turnover.

The Sentencing Council, which issues guidelines for judges to ensure that there is consistency in sentencing between courts, is keen to send out the message that organisations who undercut competitors by failing to maintain proper safety standards will pay the consequences financially.

It should be noted that the new guidelines apply to any offence which is sentenced after 1 February 2016, regardless of when the offence was committed.

 The Guidelines identify a number of steps for the court to consider in order to determine the range of possible fines.

Setting fines

Three steps will be considered in setting an appropriate fine.

Health and safety offences:

1. Degree of culpability – to establish whether culpability is low, medium, high or very high the court will consider  a number of factors – including what measures were put in place; the extent of which failures ran through different levels of the organisation and whether there were any warning signs indicating a risk to health and safety.
2. Level of harm – this requires the court to consider the risk of harm created by the offence, including a number of issues such as whether the offence exposed a number of people to the risk of harm or whether there was significant actual harm.
3. Company turnover – this will be the starting point for a fine within a category range; large being £50m or over, medium £10m – £50m, small £2m – £10m and micro turnover less than £2m.

Breach of food safety and food hygiene regulations – considerations are:

1. Degree of culpability – a number of factors will be considered including failure to put in place recognised industry standards, ignoring concerns of regulators and the length of time of breach.
2. Level of harm – similar issues to those outlined for health and safety offences will be considered – but will also include whether consumers have been misled regarding food compliance with religious and personal beliefs.
3. Company turnover – companies are categorised in the same way as for health and safety offences.

Mitigating and aggravating factors

In addition, as with any sentencing exercise, the court will consider both aggravating and mitigating factors which may result in an adjustment to the fine.

Mitigating Factors

Factors which reduce the seriousness of the offence include:

• no previous convictions or no relevant/recent convictions
• evidence of steps taken voluntarily to remedy the problem and procedures in place.

The guidelines highlight how important it is for operators to have proper procedures in place and to ensure that staff are trained so that the procedures are followed and documented (see practical implications below).

Aggravating Factors

Conversely factors which would be perceived as increasing the seriousness of the offence, include:

• poor health and safety record
• breach of a court order
• previous convictions having regards to the nature of the offence to which the conviction relates and its relevance to the current offence. 

Increased fines

The Guideline is a significant step up in terms of levels of fines, providing for unlimited fines. For health and safety offences for businesses with a turnover of £50m, found guilty of breaching health and safety regulations at the highest level of harm and culpability, there is a startling starting range of £2.6 – £10m.

However, where organisations have a turnover which greatly exceeds £50m, courts may have to move outside the suggested range to achieve a proportionate sentence.

For food hygiene offences the starting point when fining a large organisation (turnover of £50 or more) found guilty of a food safety offence where both the harm and culpability levels are high would be £1.2m (with the fine range being £500,000 up to £3m).

 Practical Implications

In the M&B case the company’s defence was that it took all reasonable precautions to prevent the offence.  The prosecution accepted that M&B did have due diligence procedures in place and that if they had been properly followed the death and illnesses would have been prevented.  However, the jury did not accept that the procedures had been properly followed by the individuals concerned.  M&B did not condone the actions of its manager and chef and said that they had not followed M&B safety procedures.

This case illustrated that it is essential to ensure that:

• robust due diligence procedures are in place;
• staff are trained to operate due diligence procedures effectively;
• records are kept of safety checks carried out; and
• staff are monitored to ensure that procedures are always followed in practice.

Further Information

See: Sentencing Council on health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines.