Clean break for the kitchen

By Peter Coulson

- Last updated on GMT

Related tags Food hygiene Hygiene Vodka

Coulson: directors can be held liable
Coulson: directors can be held liable
Pubs are subject to the same rules of hygiene as any other catering establishment, warns Peter Coulson.

I walked out of an award-winning gastropub the other evening discussing what were the actual differences between it and a restaurant.

"No table cloths," said my wife. And that's about it, really. That and the decent beer.

One of the major similarities is not front of house, of course, but behind the scenes. Pubs are subject to the same rules of hygiene as any other catering establishment, and can be prosecuted in exactly the same way.

Most claims involving sickness or food poisoning firstly find their way to the environmental health department of the local authority, whose duty it is to investigate such allegations, seek out the potential cause and take such action as is necessary. Sometimes, in serious cases, this means closure of the food premises. Where manifest bad practice is found, they can issue an order to clean up, or can prosecute the "proprietor of the food business", whoever that may be.

In the case of a managed business, clearly the company could be held liable under the relevant food hygiene laws for any malpractice found by their employed staff. They might seek to prove, in the first instance, due diligence by the company directors, in order that the blame would lie on house management, if blame were indeed shown.

It is perfectly possible under the current law for directors to have personal liability on a number of food hygiene and health and safety issues, so everyone in the chain of command has to be aware of their potential liability. So the first likelihood is for action by the statutory authorities and a prosecution in the magistrates' court against the company, who then might be fined if found guilty.

The alternative, however, is a civil action for damages, brought by the person who claimed to have been affected. Such a claim is usually commenced by a writ issued in the High Court and does not involve the magistrates. It is not necessary for there to have been prior action by the council in respect of food hygiene legislation, but of course if the company has already been convicted this might strengthen the chances of success for the action itself.

We are increasingly in a culture where more people are using the courts to make claims, sometimes on the basis of "no win, no fee" deals. It clearly pays to check your insurance cover to make sure you have such matters included wherever possible.


Prosecution over smoking

Q. We have had a debate here about what happens if a licensee finds someone smoking in an area that is covered by the smoking ban — not in the bar, but in a passageway that is open at one end to the garden. The smokers claim they are "outside" and refuse to give way. Will the licensee be automatically prosecuted?

A. Much will depend on the evidence presented. It is rather like the situation over drinking-up time used to be under the old law. If the licensee has used his best endeavours to prevent

the commission of an offence, then it will be for the enforcement authorities to take action against the actual smokers, not the licensee.

The Health Act contains two relevant sections. These are "Smoking in a smoke-free place" and "Failing to prevent smoking in a smoke-free place". If you have put up a sign in this passageway so that people who enter from the garden know that smoking is not allowed there, and you regularly enforce it by telling smokers not to smoke in the area, then you have a defence to any charge of permitting it. The defences outlined in the Act are that you took "reasonable steps" to stop the smoking, or that you could not have been reasonably expected to know about it.

I suspect that if you are in the bar, you cannot monitor this passageway all the time, so it is really a question of what is reasonable in the eyes of the enforcing officer. The burden of proof is on him to show that you connived in some way.

Multiple measures — stick to same size

Q. We have recently taken the decision to switch our spirits to 35ml measures in the bar. My question is: does this cover all spirits, including speciality ones, and can you tell me whether it is legal to serve multiple measures in the same glass, or can you only serve the larger measure as it stands?

A. The relevant Weights & Measures Order actually states that "a multiple" of the stipulated measure may be used, as long as the same quantity is in use throughout the premises. But this rules only applies to the

four named spirits, which are

gin, rum, vodka and whisky.

All other spirits and liqueurs

may be served in whichever measure you choose, as long as there is no attempt to deceive the customer.

So this means that according to the law you can put as many shots as you like into one glass, usually on the instructions of the customer. But you cannot mix 25ml and 35ml measures for gin, rum, vodka or whisky on the same premises, even in different bars. You must stick to the same measure for these particular spirits everywhere.

Concessions for club staff after time

Q. What is the position of club bar staff regarding drinks after time in a club with a premises certificate? Can they use up their free allocation or take drinks previously bought, like pub bar staff?

A. The concession for after-hours drinks provided by the licence holder to a staff member that was contained in the Licensing Act 1964 did not

apply to registered members' clubs, where there was no licence holder.

It depends whether the pouring of the drink constitutes a licensable activity under the new Act. If it is a sale to the person in question, then it will clearly be caught. Similarly, a "supply" by or on behalf of a club to, or to the order of, a member is covered by section one and will not be allowed outside agreed hours.

This means that the drinks bought for staff by members must not be poured, because that would constitute an illegal supply. But a genuine gift is not a licensable activity and

so the club could technically "give" drinks to bar staff for consumption after time and stay within the law.

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