Due diligence

If a business is prosecuted under food hygiene law, it may be able to use the due diligence defence. The business must show that it took all reasonable precautions and exercised all due diligence to avoid the offence. The burden of proof is on the business. It is not enough to say that you did your best.

Think of the defence in two parts. Reasonable precautions means you set up a sensible system to prevent the problem. Due diligence means you made sure the system was actually followed, every day. A well-written manual on a shelf covers only the first part.

Evidence normally includes your food safety management system, temperature and cleaning records, training records, supplier and delivery records, pest control reports, maintenance and calibration records, and notes of corrective action. Corrective action records are among the most useful. They show that you noticed a problem and dealt with it.

Records must be true. Officers look for signs of false records, such as a month of fridge readings all in the same pen, all showing 4°C, for a fridge that reads 10°C today. Never fill in a record before the check is done, and never copy yesterday's figures. A false record destroys your defence, and giving false information to an officer is an offence.

Records should fit the business. A small café using a diary can have strong evidence if the diary is honest and problems are followed up. A factory will need far more. What matters is that the checks suit the risk and are really done.

If you say that a fault was caused by someone else, such as a supplier, you must identify them to the prosecutor in writing before the hearing. You will normally also need to show that your own checks were reasonable, or that it was reasonable to rely on the supplier's checks. Keep specifications and check deliveries.

Due diligence is more than a legal defence. The same habits stop people becoming ill. Build the system to keep food safe, and the evidence will follow.