Hygiene Emergency Prohibition
Notices and Orders
David Barclay Rhodes
Food Safety Team Manager
Leicester City Council
The Food Hygiene (England)
Regulations 2006
• Especially relevant:
• Regulation 7 – hygiene prohibition orders
• Regulation 8 – hygiene emergency prohibition
notices and orders
• Regulation 28 – service of documents
The health risk condition
• Imminent risk of injury to health
• Imminent – liable to happen soon; impending
• Risk – the possibility of incurring misfortune or
loss
Burden of proof
• On the balance of probability - “more likely
than not” – “51%”
• R 8 (1) If an authorised officer of an
enforcement authority is satisfied that the
health risk condition is fulfilled with respect to
any food business he may by a notice served
on the relevant food business operator (in
these Regulations referred to as a “hygiene
emergency prohibition notice”) impose the
appropriate prohibition.
Food Law Code of Practice 2012
Hygiene Emergency Prohibition Notices served
under regulation 8 of the Food Hygiene
(England) Regulations 2006 or Emergency
Prohibition Notices served under section 12 of
the Food Safety Act 1990 should be signed only
by Environmental Health Officers (see Section
1.2.9.1.4) who: ….
Food Law Code of Practice 2012
• have two years’ post qualification experience
in food safety matters;
• are currently involved in food law
enforcement; and
• are properly trained, competent and duly
authorised; or
• in relation to primary production, officers who
are suitably qualified and experienced (see
1.2.9.1.4) and are properly trained, competent
and duly authorised.
Appropriate prohibition
• The use of the process or treatment for the
purpose of the business
• The use of the premises or equipment for the
purposes of the business or any other
business of the same class or description
• The use of the premises or equipment for the
purposes of any food business
[taken from Regulation 7 (3)]
Examples of imminent risk ….
• evidence of rats throughout the rear
preparation room and kitchen. [Chilli Tree]
• poor structural standards, poor cleaning and
disinfection, inadequate washing facilities and
evidence of mouse activity in the store rooms
and yard. [Asli Sweet Centre]
• extensive evidence of mouse activity and poor
standards of cleaning throughout the
premises. [Leicester Wholefood Cooperative]
Examples of imminent risk ….
• evidence of mouse activity throughout all
three floors of the storage facility and poor
protection of foodstuffs from
contamination.[Virpur Millers]
• evidence of mouse activity, lack of hot water
for cleaning and disinfection and a poor level
of cleaning. [Kilimanjaro]
• evidence of cockroach activity, poor structural
conditions and poor standards of cleaning.
[Doner Master]
Examples of imminent risk ….
• absence of hot water for cleaning and
handwashing, inadequate lighting in the
washup area, absence of suitable chemicals
for disinfection and poor standards of
cleaning. [Kams King of The Grill]
• evidence of rat activity within the business.
[Yumchi]
Evidence for court
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Notebook entries
Witness statements
Plans
Photographs
Dirt, grime, droppings, bodies ….
Copies of notices
Draft HEPO or declaration
During the HEPN visit
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Identify FBO
Determine language(s) spoken by FBO
Get home address on notice [recovery of costs]
Ensure valid service of notices
Ensure valid date and time of application for an
HEPN [if HEPN = day 1, then generally application
for HEPO = day 3]
• Write action sheet and hand to FBO
• Affix copy of HEPN in a conspicuous position on
the premises [and photograph this]
Before the application hearing
• Have 4 evidence files ready
• Revisit and include written report in files or
prepare a verbal report for the court
• Instruct the lawyer whether application is for
an HEPO or for a declaration
• Pass record of costs incurred to lawyer
Ceasing HEPN or HEPO Having Effect
• On the issue by the enforcement authority of
a certificate to the effect that they are
satisfied that the food business operator has
taken sufficient measures to secure that the
health risk condition is no longer fulfilled with
respect to the food business.
[taken from Regulation 8 (8)]
“Voluntary procedures”
• Voluntary Procedures to remove a health risk
condition may be used, at the instigation of the
food business operator, when the food business
operator agrees that a health risk condition exists
as defined by regulation 7(2)/regulation 8(4) i.e.
there is an imminent risk of injury to health. An
officer may suggest this option to the food
business operator, but only when they are able to
use regulation 8. If in doubt, the food business
operator should be advised to take legal advice.
[Food Law Code of Practice 2012]
Criteria For An Undertaking Rather
Than an HEPN
• A person has identified himself as a food business operator
or has agreed that he is a food business operator.
• There is a history of compliance and at the last inspection
visit the confidence in management score was 10 or lower
OR in the absence of any history of compliance, the officer
seeking and securing an undertaking is confident that the
food business operator’s knowledge, ability, intention and
attitude are all appropriate.
• The officer seeking and securing the undertaking is
confident that it will be honoured and the establishment
not re-opened without the officer’s knowledge and/or
agreement.
• No obstruction has been encountered during the visit.