FSA Letter to Local Authorities (ENF/E/07/005), 24 January 2007
The following is the text of a letter from the FSA to Local Authorities. It is in response to a part of the Davidson Review Final Report which included a case-study on food hygiene training requirements. The relevant part of the Davidson Review Final Report is reproduced below the letter .
As you may be aware, the recent report of Lord Davidson's review, commissioned by the Chancellor to examine the implementation of EU legislation in the UK , makes a recommendation in relation to the enforcement of the training requirements in Chapter XII of Annex II to Regulation (EC) No. 852/2004. This recommendation was based both on evidence received from food businesses and information gathered from Food Authority websites during the review. The report can be accessed via the Davidson Review website.
In the light of the report, the main purpose of this letter is to remind colleagues of the legal position on food hygiene training i.e. that compliance with the training requirements for food handlers and managers need not necessarily include attending formal and/or accredited training, whether external or in-house. The necessary skills may also be obtained in other ways such as through on-the-job training, self study or relevant prior experience. This position is reflected in Agency guidance and in an updated document recently issued by LACORS which is available on their website and receives a mention in the report.
As you are aware, the legislation effectively requires those within a food business to have the necessary knowledge to ensure that they do not compromise the safety of food whilst carrying out their duties, whether through the direct handling of food or the management of the business and its food safety management procedures.
Compliance cannot, of course, be demonstrated simply by having attended a formal training course or the production of a certificate; managers and staff must actively put their knowledge of food hygiene into practice in the workplace, regardless of how this has been gained. Enforcers therefore need to make judgements on compliance which are likely to be based on evidence obtained from questioning managers and staff, observing work practices and from any relevant documentation.
A food business should always be afforded the opportunity to demonstrate its compliance, whether or not formal training is part of its strategy in this regard. The Agency would not in any way discourage formal and/or accredited training and recognises both the contribution it can make to a business's compliance with the legislation and to investment in its staff. As the report itself recognises, where training deficiencies are identified, formal training might reasonably feature in an enforcer's recommendations on action which a business might take to contribute to its compliance.
Finally, the report indicates that the evidence which was gathered from Authorities' websites during the review raised some concerns regarding the accuracy of the advice provided on food hygiene training or the potential for Authorities' recommendations to be misinterpreted as legal requirements. As such, the Agency would suggest that Authorities providing information via their websites, which mention formal training, may wish to review this material to avoid any such misunderstandings.
Note: This material is subject to Crown Copyright. The full report can be downloaded from: http://www.cabinetoffice.gov.uk/REGULATION/documents/davidson_review/davidson_review.pdf
4.42 In recent years the UK Government has adopted clear guidelines to prevent departments from going beyond the minimum requirements of European legislation, unless they can justify the evidence-base for doing so. However, some over-implementation takes the form of regulatory creep occurring at the level of local enforcement or inspection, which by its very nature is not subject to public scrutiny during the transposition process. The example of the training requirements for food handlers in European legislation on food hygiene, and how they have been applied in practice by different local authorities, was identified from evidence received during this review as an example of regulatory creep.
4.43 In 2004, the EU adopted a number of directly applicable regulations on food hygiene, which came into effect on 1 January 2006. The EC regulations replaced and revoked previous Community directives on food hygiene and, as such, UK regulations which implemented these directives also had to be revoked on that date. Enforcement of the EC regulations in the UK is provided for via the Food Hygiene ( England ) Regulations 2006 and equivalent legislation relating to other parts of the UK . The EC regulations aim to ensure a high level of consumer protection and require businesses to put in place, implement and maintain food safety procedures based on the Hazard Analysis Critical Control Point (HACCP) principles. Responsibility for enforcementof this legislation in the majority of food businesses rests with local authorities.
4.44 The food sector is dominated by small firms. 60 per cent of food businesses in the UK are in the catering sector, 80 per cent of which are micro-businesses employing ten staff or less. As a result, the Food Standards Agency invested a lot of effort into developing new guidance material, such as food safety management packs, to help small food businesses in particular comply with the new legislation.
4.45 In response to the review's call for evidence, a number of food industry respondents asserted that enforcers were imposing requirements on training for food handlers that went beyond the requirements in Regulation 852/2004.46 This Regulation carried forward the training requirements for food handlers present in its predecessor, Directive 93/43/EEC, which was implemented in the UK by the Food Safety (General Food Hygiene) Regulations 1995.47 The training provisions in Regulation 852/2004 relate to both food handlers and those with responsibility for the necessary HACCP-based systems. The requirements are that:
“Food business operators are to ensure that food handlers are supervised and instructed and/or trained in food hygiene matters commensurate with their work activity”; and that, “those responsible for the development and maintenance of procedures based on the HACCP principles or for the operation of relevant guides have received adequate training in the application of the HACCP principles.”
4.46 Regulation 852/2004 is the cornerstone of food hygiene legislation and is directly applicable to all food businesses in the UK . The main concern raised with the review was that some local authorities, or some enforcement officers, were insisting that all food handlers attend formal training courses in basic food hygiene. Furthermore, some enforcers required handlers to attend refresher training courses every three to five years and managers or supervisors to have a higher level of qualification, implying that these were specific legal requirements.
Impact of the over-implementation on food businesses
4.47 The impact of the regulatory creep clearly depends on how widespread it is. The review has tried to assess whether it is just the case of individual enforcement officers being over-zealous in their application of training requirements, or whether local authorities require food handlers to attend training courses as a matter of local policy.
4.48 Our initial research has indicated that the problem does not seem to be restricted to overzealous individuals. Oxford City Council's website states that “All food handlers handling open high risk foods must complete Level one training within three months of starting work.” Greenwich Council's website states that “everyone who manages and handles food in catering and manufacturing businesses should attend the (basic food hygiene) course.” Birmingham City Council directly quotes the EC legislation but goes on to suggest that formal training is desirable: “The Basic Food Hygiene Certificate is the best type of training for most food handlers involved in handling high risk open food”. Norwich City Council's website suggests that “all staff have at least the Basic Food Hygiene Certificate, supervisors have a least the Intermediate level” and that “managers and proprietors are trained to the Advanced level.” A quick check on the websites of roughly 10 per cent of other local authorities in England revealed that around 25 per cent were implying that it is a legal requirement for food handlers to attend formal training courses.
4.49 The impact of regulatory creep may also vary according to the size of the business. Larger companies may be more familiar with the detail of food law and have robust systems and procedures in place, and hence may be confident enough in their dealings with enforcement officers to challenge any requests for formal training if they have alternative arrangements in place. Smaller operators, who are more reliant on advice received from enforcement officers may be less able to distinguish between best practice and regulatory requirements, and less willing to challenge an enforcement officer for fear of damaging the relationship. Smaller operators may, therefore, incur disproportionate costs by sending all food handling staff on formal training courses instead of taking up the option to supervise and instruct and/or train them on the premises (if the operator has the right skills and knowledge to do so). One restaurant manager in London estimated that an enforcement officer's insistence that he attend a basic food hygiene course in 2005, despite 30 years' experience, cost him £400 as he had had to close the restaurant whilst on training. Another compliance officer from a medium-sized bakery had put together an accredited training course for all staff costing £3,000.
Possible reasons for over-enforcement
4.50 Before discussing possible reasons for over-implementation, it should be clarified that there are some valid reasons as to why enforcement officers may require food handling staff in certain businesses to attend formal training courses. First, in small businesses, the dividing line between those responsible for HACCP procedures and handlers may not be as clear as in larger businesses, and the EC Regulation requires training for the former group (although this does not necessarily have to be formal training). Second, it may be reasonable for those inspecting food handling staff in higher risk environments, for example those in hospitals or nursing homes, to encourage a higher level of training. If the enforcement officer judged that the in-house supervision and instruction or training of staff had not been sufficient, in that handlers were not able to demonstrate the appropriate food hygiene competencies, and the business was not able to identify an alternate means to achieve compliance, then the enforcement officer may have good reason to suggest attendance at a formal training course.
Guidance at EU and national levels
4.51 One of the generic causes of regulatory creep, encountered during the review, can be that UK guidance does not clarify unclear EU-level legislative provisions. As a result, enforcers or businesses end up interpreting the requirements in an over-cautious manner, leading to regulatory creep. With respect to training for food handlers, the European legal provisions are not unclear, but there is a range of guidance on how to apply the Regulations at both the European and domestic level.
4.52 The European Commission's guidance document on Regulation 852/2004, produced in November 2005, explained that training should be appropriate to the size and nature of the business and could be achieved in different ways including, “in-house training, the organisation of training courses, information campaigns from professional organisations or from the competent authorities, guides to good practice, etc.” Similarly, further Commission guidance on HACCP was clear that “appropriate training does not necessarily involve participation in training courses. Training can also be achieved through information campaigns from professional organisation or competent authorities, guides to good practice, etc”. The European guidance, though issued later in the regulatory process than desirable, is therefore clear that attending a formal training course is not a legal requirement and that compliance focuses more on food handlers having the relevant knowledge, however it has been gained, so they are able to put it to use in practical situations.
Guidance for enforcers
4.53 There is a range of guidance materials for enforcers on food safety. Enforcement authorities must have regard to provisions in the statutory Food Law Code of Practice. The Code does not make any explicit reference to the flexibility within the EC legislation on training. The Food Standards Agency has issued Food Law Practice Guidance to complement the Code which states, in respect of HACCP-based systems, that for managers, ‘formal training is not the only route.' For staff the Guidance says, “in practical terms, on the job training might be appropriate, attendance at a formal training event is not necessary” to achieve the objective of the legislation to have the required competencies.
4.54 Enforcers are also required to take into account, when relevant, the use of Industry Guides to Good Hygiene Practice by food businesses. Such Guides provide guidance on compliance with the legislation and on good practice which food business operators can follow if they choose. Guides are provided for in Regulation 852/2004 which sets out requirements for their development and dissemination. Member States are encouraged to develop industry guides and assess them to ensure their integrity before they are disseminated.51 The Industry Guides, developed since 1997, divide staff into different categories and recommend instruction or training accordingly. The current version of the Catering Guide does suggest that all staff involved in preparing open unwrapped food should receive formal training, and only waiters and counter staff could be instructed instead. The Industry Guides are currently being updated, and could better reflect the flexibility in the legislation. LACORS has recently published guidance for enforcers on the issue of training, instruction and supervision of food handlers on its website reflecting the current legislative requirements. This guidance makes it clear that attending training courses or obtaining qualifications are not legal requirements.
Guidance for business
4.55 The Food Standards Agency has also produced a range of guidance material for food businesses on how to comply with food hygiene legislation which is, for the most part, clear on the regulatory requirements on training for food handlers. The Food Standards Agency website states clearly that, “there is no legal requirement to attend a formal training course although many businesses may want their staff to do so.” The Food Standards Agency has also produced useful booklets, such as “Food Hygiene: A Guide for Businesses” which distinguishes clearly between legal requirements and good practice. This booklet states that “staff do not have to attend a formal training course, though these are useful” and that operators “could use a pack produced by the Food Standards Agency, or an industry guide to good hygiene practice, to train staff ”. This booklet is available from some local authorities' websites. The main guidance pack on the new Regulations for small caterers is the “Safer Food Better Business Pack”. This has a section for managers to complete on “training and supervision”, but it is clear that food business operators can use the pack to train their staff, rather than send them on formal training courses.
4.56 As regards accredited training, new National Occupational Standards for food safety, reflecting the requirements of the new EC Regulations, were approved in 2005 and 2006. Revised food standards qualifications, specifically focusing on catering, food manufacturing and food retailing, are now available. The new courses were developed by the Sector Skills Council, in collaboration with the Food Standards Agency. As around 450,000 certificates in basic food hygiene are granted each year, the Food Standards Agency anticipates that the revised courses will deliver a better skills base in the food industry.
4.57 While the Food Standards Agency's guidance does not go beyond the legislative requirements, the range of different guidance material available to food businesses, as reflected by what is on different local authorities' websites, may contribute to some of the confusion on the part of the food industry as to what the regulatory requirements are. Some local authorities make reference to the Industry Guides (chiefly the Catering Guide), some offer up the Food Standards Agency's guide for food businesses and others offer different guidance material on the now-revoked Food Safety (General Food Hygiene) Regulations 2005. The guidance materials are not as consistent as they might be in terms of offering advice on training requirements for food handlers.
Other reasons for over-enforcement
4.58 There are other possible causes of regulatory creep in the area of food hygiene. There may be a lack of understanding on the part of enforcers as to the legislative requirements or a lack of awareness that formal training courses are not necessarily the most effective way of teaching staff food hygiene. Another possible factor could be fear. Serious outbreaks of food poisoning in Scotland and Wales may have increased the pressure on enforcement officers to be over-zealous in their application of the legislation. If a food handler has attended a formal training course, and has got the certificate to prove it, the audit trail may be easier to demonstrate than if the handler had been verbally instructed in food hygiene by a supervisor. A few stakeholders suggested that enforcement officers may promote training courses as a mechanism to raise revenue for the authority or the Chartered Institute of Environmental Health (the professional body to which many enforcement officers belong).
4.59 Finally, some trade associations suggested that the insistence on formal training was illustrative of a wider recent trend towards regulatory creep on food safety issues. A few raised concerns about food safety award schemes adopted by local authorities, and new “Scores on Doors” schemes being piloted in a number of areas in the UK with support from the Food Standards Agency. While local food safety award schemes are optional and may encourage best practice on the part of the industry and improve transparency for local consumers, it was felt that the design of some of the schemes encouraged regulatory creep. For example, in the ‘Safer Food Award' scheme run by Norwich Council (which is not one of the Food Standards Agency-supported pilots), a business that achieved basic compliance with the legislation might only be awarded one out of five stars by the local authority. To get four or five stars, the business would have to demonstrate that it was “meeting or exceeding the industry standard.” While recognising the potential contribution of award schemes to improving food safety, the review hopes that the Food Standards Agency will avoid a model for any national “Scores on Doors” food safety scheme, covering all food businesses, which could encourage regulatory creep.
Conclusions and recommendations
4.60 The Davidson Review has found that there is evidence to suggest over-enforcement of the training requirements in European food hygiene legislation by local authorities in some parts of the UK . Food handlers' attendance at even a Level 1 food hygiene training course is not a legal requirement and businesses are being given the impression by some local authorities that it is, thus amounting to regulatory creep. It is, however, important to recognise that where a food business does not use formal training, it must nonetheless be able to demonstrate the measures it has in place to ensure that its food handlers have the appropriate knowledge in relation to food hygiene in order to achieve compliance. This regulatory creep is not universal and the Food Standards Agency guidance material is helpful in clarifying the regulatory requirements. The new LACORS guidance and the revised standards for food safety training will also start to make an impact. The Government's implementation of the recommendations in the Hampton Review on inspection and enforcement, in particular the Regulators' Compliance Code, will help local authorities take a more risk-based approach to enforcement. In the meantime, the Davidson Review recommends:
Recommendation 9 – Food hygiene training for food handlers
• The Food Standards Agency should write to heads of enforcement at all local authorities reminding them that food handlers' attendance at formal training courses is not a legal requirement and that there are alternative routes available to food business operators to comply with the legislative requirements. The Food Standards Agency should encourage local authorities to review and, if necessary, update any guidance material for food businesses, including that placed on their websites concerning training requirements for food handlers.
• The Food Standards Agency, while working with industry on updating the Industry Guides to Good Hygiene Practice published since 1997, should ensure that advice on the training requirements for food handlers in Regulation 852/2004 better reflects the flexibility in the Regulation and that advice on compliance and advice on good practice in this regard are clearly distinguished.