Those operating licensed premises are required to be compliant with a range of regulations designed to ensure the health and well-being of customers and staff including regulations for Health and Safety, Fire Safety and Environmental Health. In addition to financial penalties, non-compliance can result in temporary or permanent closure.
Falling foul of the regulators can also lead to adverse publicity. The Health and Safety Executive and the London Fire Brigade, for example, make a point of publicising all convictions for offences prosecuted. Cases also frequently end up in the media. The following are examples:
The owners of a pub in Hemel Hempstead being fined £65,000 for Health and Safety breaches following an accident on an unsafe staircase
The landlord of a pub in Hillingdon being fined £16,000 for various fire safety failings
A pub in Leicester being fined £25,000 for contraventions of food safety legislation
Some understanding of the way in which this regulation operates can help operators avoid pitfalls and respond quickly if something does go wrong. Simply relying on external consultants is not enough. Whilst they can advise on the appropriate framework and steps required to achieve compliance, overall responsibility lies with the operator itself. Too often compliance is seen as a paper exercise involving the completion of risk assessments and checklists. It is the responsibility of the operator to ensure that these documents are living tools and achieve a relevance and active status within the operation.
Invariably regulation focuses on “duty” owed by the organisation (or in the case of fire safety regulation, a person within the organisation deemed to be the “responsible person”). This duty is one that requires a particular standard to be met. For example, the Health and Safety at Work Act 1974 requires that “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure … that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
Breach of this duty results in an offence being committed unless it can be demonstrated that all reasonably practicable steps have been taken to comply with the duty. This is a high standard and is one that is certainly not reached simply by reliance on the fact that a relevant consultant has been instructed to advise on the operation. There must be a demonstration of a genuine attempt to comply with the duty, and even that may not be enough. Failure to comply with the wide range of technical regulation is likely to be deemed a failure to comply with the overriding duty and may result in enforcement action. Enforcement action can take a number of forms. Enforcement or Improvement Notices require an improvement within a particular time period. Prohibition Notices require an operation to cease (which in the case of a licensed premises, could mean temporary closure) until a perceived defect is corrected.
Serious cases can result in prosecution and companies and individuals being brought before the criminal courts. In such cases the conviction rate is high owing to the high standard required to demonstrate compliance with the relevant duty. The normal outcome is a fine, which can be substantial in the case of breaches causing or placing people at risk of death or serious injury. In extreme cases, where particular culpability can be proven on the part of an individual, a custodial sentence is possible. The way in which an organisation has responded following an accident is likely to have a significant impact on the sentencing outcome with greatest credit given to those who can demonstrate that the event in question has been a catalyst for real change.
In accidents resulting in a fatality where negligence can be proven, manslaughter charges may be brought against organisations or individuals. In nearly all fatal cases, an inquest will be called to determine the cause of death, to which individuals may be called to give evidence both as to the accident itself and the steps taken by an organisation to prevent it.
Compliance with this regulation can seem a terrible burden of red tape. Understanding what is required and ensuring that this is inculcated in the daily operation will go a long way to minimising the risk of getting it wrong.