Invest your time well to avoid infestations

John Mitchell, partner at law firm Blake Morgan, examines the risks and consequences of pest infestation incidents

Mice, rats and cockroaches are small, but they can spell big trouble for any food business. A single incident, if not handled correctly, can shut down even long-established food retail or manufacturing premises.

Recent cases involving pest infestations have included Sayers the Bakers being fined £170,000 after admitting 13 breaches of food safety laws at a shop and a café in Liverpool; while Asda was fined £664,000 last year after a customer ate a bread roll covered in mouse droppings.

The key piece of legislation relating to infestation is Regulation (EC) 852/2004 on food hygiene, and the three most common charges arising from it relate to:

• Adequate procedures are not in place to control pests;

• Food premises are not kept clean and in good repair;

• The construction of the food premises does not permit adequate protection and contamination and in particular pest control.

The charges will normally arise out of an inspection, which is often triggered by a complaint from a customer (in the case of retail premises) or a disgruntled employee (in the case of manufacturing premises).

Once inspectors find unsatisfactory and unhygienic conditions relating to the presence of rats and mice, and a failure to keep the premises clean, a Hygiene Emergency Protection Notice (HEPN) is normally served. This means the premises have to close immediately, pending steps being taken to rectify the conditions and a re-inspection to confirm that the conditions have been rectified.

Almost invariably, a criminal investigation will follow, in which senior management will be asked to attend an interview under caution. Normally this will be followed by a prosecution. The prosecution will be against the ‘food business operator’, which, one would expect, would be the company that owns the business, but recent cases have declared there can be more than one food business operator and that these can include the people who take the day-to-day decisions about how the business is run and who are, in effect, the company.

Therefore, the old idea that operating as a limited company will protect its owners against prosecution no longer holds good in food law. This has serious consequences apart from the normal risk of fine/imprisonment: a court that sentences a food business operator can make a food hygiene prohibition order, which prevents a food business operator from participating in the management of any food business.

Thus, as in a case I had recently, the company can be forced into liquidation and the owners can be prevented from starting another business. Punishments in the event of a criminal conviction can be severe – in England and Wales the fines are unlimited and the current sentencing guidelines provide for fines of up to £3m.

As ever, it is imperative that measures are taken to avoid breaches. Many operators think it is enough to have a monthly inspection by a pest control contractor, but it is not. First, the business has to act on the recommendations of the contractor. Secondly, staff have to be trained to spot and react to signs of pest infestation in the days between the contractor’s visits.

In a recent case of mine, the food business was part of a restaurant chain with immaculate procedures, including checks five times per day, but the staff were ticking boxes to say there was no problem when there evidently was.

The other consequence is loss of customer confidence. In the case of a retail outlet, the environmental health officers will put a copy of the HEPN on the door. That is enough to warn off regular customers.

In a case I recently had, the takings of the outlet dropped immediately by 35% and were still down 25% six months later. If the business concerned is a manufacturer, the customers will be retailers who will immediately want to cancel contracts. In all cases, the potential fallout can be devastating.

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