Food business operators have a regulatory obligation to protect public health. If an operator is found to have breached one of their obligations, the relevant Enforcement Authority have the power to issue enforcement action. Among the most serious enforcement actions available to Environmental Health Officers are Hygiene Emergency Prohibition Notices (HEPNs) and Hygiene Emergency Prohibition Orders (HEPOs). When emergency enforcement action is taken, there is also a real risk of a separate criminal prosecution that operators should be aware of.
This guide explains what these notices mean for your business; when they are issued; the legal consequences that can follow; and the steps operators should take to protect their food business.
What is a Hygiene Emergency Prohibition Notice (HEPN)?
A Hygiene Emergency Prohibition Notice (HEPN) is a formal notice that may be issued by an Environmental Health Officer (EHO) when they visit a food business and decide that the conditions of the premises pose an imminent risk of injury to public health. The notice can relate to:
- The premises;
- A specific process; or
- Piece of equipment.
A HEPN is typically issued when an EHO identifies serious hygiene failures, such as:
- Signs of pest activity or infestation – this may include sightings or signs of rats, mice or inspects
- Poor cleanliness or sanitation – this may include unclean food preparation areas or dining areas
- Inadequate temperature control or storage – this may include broken refrigeration, poor defrosting techniques or incorrect storage practices
- Unsafe food handling practices – this may include a lack of training, mishandling of food or unsafe reheating.
Ultimately, any observations deemed to pose an imminent risk to public health may justify the imposition of a HEPN.
Why is pest activity treated so seriously?
Pest infestations are one of the most common catalysts for emergency enforcement action being taken. Rats, mice and cockroaches present a high risk of contamination through urine, droppings, hair and bacteria.
Pest activity is often considered to be an immediate risk to public health because:
- Pests can contaminate open food and packaging;
- Pests can spread pathogens such as salmonella, E. coli, listeria and leptospirosis;
- Pest activity suggests inadequate monitoring or food safety systems
A single sighting or evidence of pest activity can justify emergency action being taken.
What happens when a HEPN is served?
If the EHO identifies an imminent risk to public health, a HEPN will be issued on the food business operator. This will be a legal document titled ‘Notice of Intention to Apply for a Hygiene Emergency Prohibition Order’. The Notice will essentially set out:
- The matters that constitute imminent risk; and
- Measures necessary to remove this risk,
In some cases, the EHO may also serve a Schedule of Works on the operator, however, there is no obligation to do so.
When a HEPN is served, it has an immediate effect. This means that upon service:
- The operator must cease operating at once;
- The premises cannot be used the premises or any equipment for any food-related operations;
- The business cannot resume until the EHO confirms the risk is eliminated;
- Failure to comply with the notice can trigger a separate criminal prosecution.
Breaching a HEPN - criminal consequences
Breaching a HEPN is a criminal offence. This means that if an operator fails to comply with the terms of the notice, such as operating the premises, a criminal prosecution will mostly follow. Any individual who knowingly breaches a notice could be fined and/or sent to prison for up to 2 years.
The wider impact of a HEPN on your business
The consequences of a HEPN being issued extend beyond immediate closure of a business. The likely consequences may be:
- A loss of turnover whilst the premises remain closed;
- Potential contractual breaches with suppliers or clients;
- Damage to the operator’s reputation and negative publicity;
- Increased insurance premiums; and
- Greater scrutiny during future inspections
When a HEPN is served on a food business operator, the enforcement authority may compensate for any loss suffered by reason of them complying with the notice, unless:
- An application for a hygiene prohibition order is made within the period of three days beginning with the service of the notice; or
- The court declares itself satisfied, on the hearing of the application that the health risk condition was fulfilled with respect to the food business at the time when the notice was served.
What is a Hygiene Emergency Prohibition Order (HEPO)?
Once a HEPN has been served, the EHO will make an application to the court for a Hygiene Emergency Prohibition Order (HEPO).
The application for the emergency prohibition order will be made within 3 days to the local Magistrates' Court. A court hearing will then be arranged, and it is a matter for the court to decide whether there is an imminent risk to public health, which warrants the imposition of a HEPO.
It is important to note that as this is a civil matter, the burden of proof is on EHO to prove an imminent risk to public health on the balance of probabilities. This essentially means that the EHO must prove it is more likely than not that there is an imminent risk to public health. The court will be looking at the health risk condition at the time the notice was served, and whether the health risk condition persists at the time of the hearing.
How do I prepare for a HEPO Hearing?
Food business operators have the right to be legally represented at this hearing. Given the potential consequences on an operator of a HEPO being imposed, it is prudent to obtain legal advice.
If the court makes the order, it will remain in force until steps have been taken by operator to eliminate the imminent risk to public health. In any event, the EHO must issue a certificate stating confirming that there is no longer an imminent risk of injury to health within three days of this decision being made.
We can advise on whether you have a defence that can be put forward to the allegation that you are not complying with Food Safety and Hygiene (England) Regulations 2013. This may be that you have acted with due diligence.
What happens next? Will I be prosecuted?
When a HEPN or HEPO is issued, the next stage will often be a formal criminal investigation into the business, which is carried out by the local authority. This investigation seeks to determine whether criminal offences have been committed contrary to The Food Safety and Hygiene (England) Regulations 2013, and whether prosecution is in the public interest.
Local authorities have a wide range of enforcement actions open to it at the end of its investigation. Where an imminent risk has been identified, particularly involving pest activity or serious hygiene breaches, a prosecution is often pursued by the local authority. If a HEPO is granted by the Magistrates’ Court, this is a strong indication that criminal prosecution will follow.
Operators should be aware that:
- EHOs cannot delay prosecution indefinitely. Proceedings must be started within 12 months of the date the alleged offences came to light.
- A HEPN/HEPO signals to the local authority that serious breaches may have occurred, increasing the likelihood of a prosecution.
Criminal investigations may be brought not only against the food business as a corporate entity, but also against individual directors, managers or an individual whose actions or omissions contributed to the offence. Personal liability may arise where an individual has consented to, connived in or negligently allowed an offence to occur.
The way in which an operator or individual will be sentenced is governed by specific sentencing guidelines. The sentence imposed will depend upon the following factors:
- Culpability – how far the operator/individual fell short of expected standards
- Harm – the actual or potential impact on public health
- Turnover – this is particularly relevant for companies
- Aggravating or mitigating factors – such as previous compliance history, cooperation with the investigation or remedial action
Companies convicted of food safety breaches may face substantial financial penalties. Depending on the harm and culpability of the company, fines may range from £50 for minor breaches and up to £10 million of the most serious failures involving large operators where significant harm occurred.
Individuals, including directors and managers, may receive a conditional discharge, a significant fine or up to 2 years’ imprisonment for the most serious offences.
In any event, the implications of a criminal investigation, whether for your company or you personally, can be severe. It is crucial to seek specialist legal advice as soon as a HEPN is served. Early legal intervention and support can assist with:
- Responding to the Notice;
- Preparing for a HEPO hearing;
- Engaging with the local authority;
- Protecting your position; and
- Defending any subsequent prosecution.
How Stephensons can help
Our specialist food safety solicitors can advise on:
- Challenging hygiene improvement or prohibition notices
- Defending food hygiene prosecutions
- Appeals against local authority enforcement decisions
- Proactive compliance reviews to minimise risk under the new code – we work with specialist food safety consultants who can assist with compliance audits and reviews and hands on assistance with implementing appropriate policies.
Contact our regulatory law team on 0161 696 6250 for immediate support.
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