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Failure to serve safe food could land you in prison

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51 years ago

Mohammed Abdul Kuddus and Harun Rashid, the owner and manager of a takeaway in Lancashire, were recently convicted and imprisoned for 3 years and 2 years respectively. This case has caused much concern amongst curry restaurateurs and follows an earlier case, in 2016, when Mohammed Zaman was convicted and imprisoned for 6 years at Teesside Crown Court.

In both cases these establishments had provided food that contained peanuts or peanut protein to customers who were seriously allergic to these products. This was despite the fact that in both cases the customers had warned those supplying the meals of their allergy. For two of the customers the consequences could not have been more serious as their allergic reactions to the food killed them.

Restaurateurs have to take great case to avoid similar convictions. In law you have a duty of care to your customers and serving them food that makes them ill or worse means you have breached that duty of care.

A particularly bad breach of your duty of care can lay you open to the more serious charge of gross negligence. And if, as in the cases described above, your gross negligence results in the death of a customer then you can be found guilty of gross negligence manslaughter. This is the charge that put these defendants in prison.

At what point does a breach of duty become gross negligence? Ultimately, that will be decided in Court. But one important factor affecting the Court’s decision is whether the serious consequences of the breach were obvious. In other words, were they foreseeable? In these two cases they clearly were. The dangers of nut allergy are well established. The negligence was even less excusable because the customers had warned the meal suppliers that they were allergic to peanuts.

There are a number of steps that restaurant owners can take to protect customers from unsafe food and themselves from conviction. Firstly, make sure you know all the ingredients in the food you sell. Neither establishment in these two cases had a list of the ingredients used in their recipes. Commenting on the takeaway owned by Kuddus, the trial Judge, Mrs Justice Yip, commented, “It appears that no one had any way of knowing what allergens were in the food supplied.”

Next, always communicate the possible risks from allergens to your customers. Make sure meals are accurately labelled with information about allergens they may contain. This information should also be clearly written on the menu, for instance, “Warning, contains peanuts.” If you have been unable to confirm whether or not a particular meal contains allergens you should make this clear to your customers. So next to the item on the menu it should say, for example, “May contain peanuts or peanut nut protein.” Making these things clear is equally important should food be ordered online or taken away from the establishment to consume as it is if served on the premises.

Staff should be regularly trained on food safety and hygiene. They should know what kinds of food are likely to contain allergens and how to provide food that is safe. This training should enable them to advise customers on the possible risks from allergens in dishes served by the establishment.

Also make sure you pick up and respond to customers telling you about their allergies. For example, waiting staff should be trained to listen to customers informing them about food allergies and advise appropriately. In particular, ensure you do not miss online messages from customers telling you about their allergies. For example, if there is a space on the booking form for customers to record allergies make sure this is read and acted on.

Restaurants also need to make sure that staff training is up to date and that all staff are not just properly trained but that they are complying with their training.

It might be worth hiring a consultant to ensure compliance. However making sure you get a competent and reliable consultant may not be as easy as it sounds as at present there does not appear to be a list of authorised list of reputable consultants.

As we have seen the consequences of failing badly in terms of duty of care can put a restaurant owner or manager in prison. Taking the steps outlined will help protect your customers and your business, but there is a lot more besides that can be done as well. A number of sources of further valuable advice exist, including Allergen Guidance for the Industry, published by the Food Standards Agency. This guidance helps you understand the legal requirements for declaring and labelling allergens. It also points to resources that will help staff understand and apply the requirements. This can be found at: https://www.food.gov.uk/business-guidance/allergen-guidance-for- industry

Also published by the Food Standards Agency is Hygiene Requirements for your business. As well as outlining food hygiene requirements this guidance also provides links to more comprehensive information, such as the British Hospitality Association Catering Guide. You can find this at: https://www.food.gov.uk/business- guidance/hygiene-requirements-for-your-business

The article above. was written by Gulam Ahmed, Barrister, 2 Kings Bench Walk, London. Gulam is an experienced barrister who defends in serious crime, including manslaughter and health and safety prosecutions. He can be contacted by email on: GAhmed@2kbw.com

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