Primary Authority – not a get out of jail free card

Many multi-sited businesses have set up Primary Authority (PA) relationships with their regulators, such as Environmental Health, Trading Standards and the Fire Service, in order to obtain consistent guidance and advice on their business compliance strategies.  Some have their health and safety; food hygiene; and fire safety manuals and protocols reviewed, with a few obtaining assured advice.  By following the PA’s advice, these businesses can implement a standardised approach to compliance and demonstrate that they comply with the appropriate legislation.  Having a PA relationship provides the business with reassurance that their protocols achieve legal compliance.  Where necessary, the PA will liaise with other enforcing authorities and can refuse permission to prosecute the business where they believe that the company has exercised due diligence.

However, businesses should be aware that if their internal protocols fail at an individual site, this doesn’t mean that an enforcing authority will be prevented from prosecuting the business for that failure.

The Recent Decision
The Secretary of State for BEIS, Rt Hon Kwasi Kwarteng MP, recently upheld an enforcing authority’s request to allow the prosecution of a supermarket chain for rodent infestation and food safety issues, overturning the PA’s refusal of permission for the intended enforcement action.  The enforcing council had received a complaint of mouse droppings and fur in an Easter egg bought from the store.  On inspection, the EHOs found a mouse infestation, poor cleaning and served a Hygiene Emergency Prohibition (HEP) Notice.  The Magistrates Court upheld this decision, making HEP Order.

When the enforcing authority notified the PA of its intention to prosecute, the PA refused on the basis that the company had procedures in place to control pests and maintain cleanliness.  The enforcing authority identified that these protocols were not being adhered to at the store.  Their position was that merely having a protocol is not enough to comply with the law.   The enforcing authority sought a determination from the Secretary of State.  He rescinded the PA‘s decision and allowed the prosecution.

Whilst determination is unusual, only eight other cases have been decided since 2015, businesses should not expect their PA to automatically support them when an individual site fails to attain the company’s standards.

Next steps
Companies should use internal or third party auditing to identify and rank store compliance; use coaching and specific training to improve compliance at outliers, and review their due diligence measures to ensure that they can defend any prosecution.