Reducing lockdown and balancing risks for food businesses

The majority of Food Business Operators (“FBOs”) have been affected to some degree by the COVID-19 pandemic. Businesses that have been deemed essential, for example manufacturers and supermarkets, have undertaken measures such as adjusting shop floor layouts to implement social distancing, and many have faced huge problems with the supply chain due to unprecedented consumer stockpiling. Other businesses such as pubs, cafes, and restaurants have had to close due to the restrictions enacted by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. The situation has been further complicated by the differing approach within each of the devolved administrations.

Health and Safety Obligations

As England and Wales allows a gradual lifting of the lockdown, businesses must grapple with risk assessments. Assessing risks, and acting upon those assessments, is a legal requirement. In addition to general food legislation, all businesses must produce a written risk assessment if they employ over five people. Many FBOs are publishing their risk assessments internally – but very few are going out to the wider public. While there is no legal requirement to publish a risk assessment, the Government guidance issued for restaurants (offering takeaway or delivery) and shops suggests that risk assessment results should be published on your website, and stipulates that this is an expectation for businesses with over 50 workers. Additionally, FBOs, like any other business, must also comply with the general health and safety obligations set out within the Health and Safety at Work Act 1974. Specifically, sections 2 and 3 require employers to ensure the health, safety and welfare of all employees and non-employees so far as reasonably practicable.

Additional legal safety requirements apply for specific categories of employees, such as young persons (under 18), pregnant or expectant mothers, migrant workers, or workers with disabilities. An employer will need to show that the specific risks to each these employees has been addressed.

Reasonably Practicable – Some Guidance

The key to assessing risk is to determine what is reasonably practicable for your business, which depends very much on the level of risk posed. It is vital that FBOs assess the risks to employees and non-employees posed by COVID-19 and implement safe systems of work to reduce these risks so far as reasonably practicable. Help can be found within the Government’s guidance to demonstrate reasonable practicability. Remember that the devolved governments are issuing their own respective guidance.

Government guidance to FBOs in England (found here) states that FBOs should continue to follow the Food Standard Agency’s guidance on good hygiene practices in food preparation (found here) and their Hazard Analysis and Critical Control Point (HACCP) processes (found here) as part of the Food Safety Management System.

Businesses in general should stress the importance of: frequent handwashing for 20 seconds, particularly after employees have been in a public place, blown their nose, coughed or sneezed. FBOs in particular should maintain good hygiene practices in the preparation and handling of food.

Similarly, businesses should ensure that workers maintain a 2 metre distance where possible. The guidance clearly states that this advice applies to both inside the food business and in external public areas where customers may need to queue. Although it is up to individual businesses to decide on the best course of action, the guidance provides the following measures which may help with social distancing:

• use additional signage to ask customers not to enter the shop if they have symptoms
• regulate entry so that the premises do not become overcrowded
• use floor markings inside the commercial spaces to facilitate compliance with the social distancing advice of 2 metres, particularly in the most crowded areas such as serving counters and tills
• use vertical signage to direct customers into lanes if feasible to facilitate movement within the premises while maintaining 2 metre distance
• make regular announcements to remind customers to follow social distancing advice and clean their hands regularly
• place plexiglass barriers at tills and counters, if feasible, as an additional element of protection for workers and customers
• encourage the use of contactless payments where possible, without disadvantaging older or vulnerable customers
• provide additional pop-up handwashing stations or facilities if possible, providing soap, water and hand sanitiser

There is specific social distancing guidance relating to: food processing plants; supermarkets; staff canteens and rest areas; takeaways and restaurants offering a pick-up service; and outdoor food markets and farmers markets. You can find the latest Government COVID-19 guidance issued to FBOs here.

Further to the above-mentioned guidance, there is specific guidance to restaurants and takeaways which can be found here; and specific guidance for food retailers can be found here.

Finally, risk assessments are important at all times as noted above – and it is important to consider not only COVID-19 risks but other pre-existing risks which, prior to the pandemic, may not have been a concern. For example, the Health and Safety Executive is reminding employers, the self-employed and people in control of premises that after such a long shutdown, they need to assess not only how to operate safely going forward, but consider the more traditional risks such as the risk of legionella bacteria growing within water systems. Therefore, your returning to work risk assessment should be wide-ranging to include hazards beyond COVID-19. You can read more about legionella here. You should also consider reviewing and updating your health and safety policies and procedures.

If you have any specific questions regarding the content within this publication, or any general health and safety queries, please do not hesitate to get into contact with us.