Who takes the stick for lax food hygiene?

My recent article about pubs being sued for food poisoning has brought an incandescent response from one reader.

His point is that the fault is often not the licensee's but his brewery or operating company. He is the manager of a brewery-operated pub and has been notified of a serious complaint concerning the state of the food preparation area, which the brewery has been promising to fix for some time. His question, which is an interesting one amidst all the anger, is: if legal action is started, whose responsibility is it - his or the brewery?

Bearing in mind that one pubco was last week reported to have been fined a whopping £13,000 for a filthy kitchen, it is a pretty important financial consideration, not to mention the conviction and possible loss of livelihood as a result.

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

During the past year, one particular pubco has been singled out for severe criticism

from EHOs, because they see far too many examples of unsanitary and positively dangerous food preparation and handling in their 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.

In 1990, a case involving a Midlands 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 that no liability could be attached to the brewery.

But the situation is obviously different in a managed house. Here it is the brewery that has ultimate responsibility for what goes on, unless they can show that they have delegated all such matters to the licensee and used "due diligence" in instructing them what to do.

When an Improvement Notice is issued listing, among other things, defects to the food preparation room or the windows, or the fabric of the building, the situation changes.

In such circumstances there is an interesting dilemma. Some of the improvements may not be the manager's responsibility under his existing agreement. Or there may have been an undertaking by the brewery that something would be done "in due course".

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 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 longterm leaseholders, their new style of leases contain, among other things, fairly stringent requirements on repairing. It is usually entirely the tenant's responsibility to keep the building in good order and fit for purpose, and this would mean that the brewery would have no responsibility for structural defects (unless they were specifically made part of the original agreement).