Coulson: Time for the trade to clean up its act

One of the elements that McDonalds will undoubtedly include in its new A-level course for burger managers is food hygiene.

A boring subject, I know - but some in the licensed trade continue to shunt such issues to the back of the agenda, or more likely say that it is someone else's problem.

That was the line taken recently by a former Greene King manager, who received a 12-month conditional discharge for his part in not maintaining clean working systems.

The brewery had already been fined £25,000 with costs of £6,500 - so it was clear the magistrates thought they should share some responsibility for the situation that had arisen.

So if legal action is started, whose responsibility is it - the manager's or the brewery?

It is true that there are provisions in food hygiene legislation allowing environmental health officers to work "up the chain", even going as far as company directors and secretaries in an attempt to find out who is responsible for a particular house.

During the past couple of years, one pubco has been singled out for severe criticism from EHOs, who see far too many examples of insanitary and positively dangerous food preparation and handling in its estate.

It is also true that in very serious cases, individual "proprietors" can be banned from running a food business - and that means running pubs, too.

This, of course, does not add up to an absolute responsibility for the last cheese sandwich or ham salad served in any pub.

But it does create problems concerning the fabric of the building and the question of "due diligence" in relation to food-safety matters.

A 1990 case involving a Midland brewer at least cleared up the question of whether breweries could be held liable for the acts or omissions of their tenants. The judge held that it was the tenants who were carrying on the food business and there was no liability attached to the brewery.

Managed house​

But the situation is obviously different when the property in question is a managed house.

Here, it is the brewery or pubco that has ultimate responsibility for what goes on, unless it can show that it delegated all such matters to you and used "due diligence" in instructing you what to do.

The situation changes when an improve-ment notice is issued, listing among other things, defects to the food preparation room or the windows, or the fabric of the building.

In such circumstances an interesting dilemma arises: some of the improvements may not be the manager's responsibility under his or her existing agreement. Or there may have been an undertaking by the brewery that something would be done "in due course". This is a perennial problem in the industry.

Failure to carry out the remedies listed in an improvement notice is an offence, although there is provision for appealing against them if they are unreasonable.

But the notice is served upon the proprietor of the food business - and in this question, that probably means the brewery.

In certain cases, if the enforcement officer thinks the premises are unsuitable, he or she can seek a prohibition order which will effectively close the kitchen until work is carried out. This specifically refers to "the construction of the premises".

For long-term leaseholders, their new style of leases contain, among other things, fairly stringent requirements on repairing.

Usually it is entirely the tenant's responsibility to keep the building in good order and fit for its purpose: this would mean that the brewery would have no responsibility for structural defects, unless they were specifically made part of the original agreement.