Demonstrating due diligence: What’s wrong with the traditional method?
Demonstrating Due Diligence
In a recent White Paper on food safety law, Malcolm Kane looks at the practicalities of demonstrating due diligence. You can download the full White Paper here.
The traditional method of demonstrating due diligence in food safety has been by presenting the original paper-based records, complete with smudges and fingerprints, that were taken at the time of the relevant food service operation. In principle this is satisfactory.
In practice, however, a great number of difficulties exist, all of which cast doubt on the ability of paper-based records to adequately prove due diligence:
- Are the records complete and free from any gaps? If not, the value of the records is compromised proportionate to the deficiencies?
- Are they signed and dated properly? If not, the value of all the records is diminished proportionate to the deficiencies.
- Are the records credible? If they are too perfect, a Court may not believe they are bona fide in the face of contrary evidence (such as victims of food poisoning).
- Do they pass the ‘Continuity of Evidence’ test? Specifically:
- Are they signed by the same person who is recorded on the duty roster for that day?
- Are they signed by someone recorded as being on holiday that day, or off sick? If so, why?
- Have the current records been kept in a properly locked cabinet in a locked facility at all times? Are the keyholders identified?
- Has anyone been in the habit of taking records home to do some ‘work’ with them? If so, who and why? Was this authorised and verified?
- Is it possible anyone may have tampered with the records?
- Are the records otherwise credible? Specifically:
- Have the temperature probes been checked for accuracy recently?
- How old are the probes and other equipment?
- Have they been serviced regularly?
- Have they been cross-checked and their accuracy verified by an independent laboratory?
- Are the batteries changed regularly, or just when someone notices they are flat?
- Who reads the records and takes responsibility for them?
- Who double-checks them later?
- Who summarises them?
- Are there any suspicious trends – between morning and evening, for example?
- How long are the back records stored for? Are they securely stored in a locked facility?
- Are the records practically possible – is it believable that staff have been carrying out the checks recorded?
- What is the labour-time cost per reading?
- Has anyone checked the practicality of doing the job and taking records at the same time?
- Are staff, whether actively or not, being discouraged or diverted from carrying out proper readings?
- Are there any de facto short-cuts in operation? Has this been checked?
Some major food poisoning cases have involved EHO enforcement officers extracting paper records of several hundreds of individual documentary files, occupying possibly a dozen box files, scrutinized retrospectively for gaps, weaknesses, inconsistencies and, worse, actual evidence of non-compliance with no accompanying corrective action.
Not only does such evidence reflect upon the failures of the business, they also reflect upon the culpable negligence of the FBO, and have been successfully used in pursuit of this.
Even framed certificates of attending a food hygiene course have been removed from the FBO’s office wall to be used in Court as evidence of fore-knowledge of the food safety issue involved, for the purpose of reinforcing the seriousness of the offence at the sentencing stage.
Few businesses, large or small, find their paper documentary records are adequate to this degree of scrutiny. Such scrutiny invariably follows from a food poisoning incident, and the position of the FBO involved can be precariously exposed by typical paper records.
It is for this reason that many are now looking towards new technology that offers more reliable, automated methods of record creation, analysis, actioning, summary and storage.