Greene King Plc v Harlow District Council

For the purposes of the Food Safety (General Food Hygiene) Regulations 1995, “proprietor” is a statutory term. The proprietor is the person by whom the food business is carried on, whether or not that person owns the business or is involved in its day-to-day operation.

There may be more than one proprietor, depending on the facts. A company need not itself perform any of the physical operations listed in the definition of “food business”. The court must assess realistically the company’s actual role, including management, control and policy functions, rather than treating it as a mere shareholder.

Greene King Plc appealed by way of case stated from the Crown Court at Chelmsford, which had dismissed its appeal against convictions imposed by the Epping Magistrates Court for breaches of regulation 4 of the Food Safety (General Food Hygiene) Regulations 1995 concerning hygiene at the Moorhen public house.

The Crown Court found that the premises and business were legally owned and operated by Greene King Brewing and Retailing Ltd, while staff were employed by other subsidiary companies. It nevertheless concluded that Greene King Plc, the holding company, was also a proprietor because of its active management, governance, budgeting, policy and monitoring functions.

The central issue was whether the holding company was a proprietor within section 53(1) of the Food Safety Act 1990.

1. Appeal dismissed. The question stated by the Crown Court was answered in the affirmative.
2. Section 53(1) of the Food Safety Act 1990 defines “proprietor”, for the purposes of the legislation, as the person by whom the food business is carried on. It is therefore a statutory term of art. The proprietor may be the owner, but need not be. Nor need the proprietor be involved in the day-to-day running of the business.
3. There may be more than one proprietor. Whether a particular person or company is a proprietor depends on the evidence and the facts of the individual case.
4. It is unnecessary for the proprietor to carry out any, or all, of the operations listed in regulation 2 of the Food Safety (General Food Hygiene) Regulations 1995. Once the undertaking is shown to be a food business, the issue is whether the defendant is the person by whom that business is carried on and whether the relevant breach is proved.
5. The Crown Court was entitled to assess realistically Greene King Plc’s role within the group. The evidence showed more than a shareholder relationship. The company took an independent and active role in management, exercised corporate governance, approved business plans and budgets, monitored performance and took notice of health, safety and food hygiene audits. Those findings entitled the Crown Court to conclude that Greene King Plc carried on the business.
6. The court noted that the statutory defence of due diligence under section 21 of the Food Safety Act 1990 remained available where the facts justified it. There was no suggestion that the corporate structure had been designed to evade responsibility.

• High Court (Administrative Court): appeal by way of case stated dismissed; the Crown Court’s answer that Greene King Plc was a proprietor was upheld.
• Crown Court at Chelmsford: dismissed the company’s appeal from the Epping Magistrates Court and answered the preliminary issue in favour of the prosecution.
• Epping Magistrates Court: convicted Greene King Plc of breaches of regulation 4 of the Food Safety (General Food Hygiene) Regulations 1995.