Summary: The Ombudsman will not investigate this complaint about the Council not taking enforcement action against the complainant’s employer. This is because he also unlikely to find fault with the way the Council acted in this case. The Ombudsman is also unlikely to determine the complainant had suffered a personal and significant injustice to the complainant.

The complaint

1. The complainant, who I refer to as Mr F, is making a complaint against the Council for failing to take action against his employer which is active in the provision of hotel and restaurant services. He says his employer is in breach of its legal obligations concerning food safety, working conditions (including conducting health assessments) and the Working Time Directive. Mr F wants the Council to take enforcement action against his employer for the failings.
2. Second, Mr F feels the Council acted improperly when investigating his concerns against his employer and that officers were negligent in their duties. He wants sanctions applied against the individual officers.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended).
5. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)).
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault, or the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended).
7. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended).

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How I considered this complaint

8. I have reviewed Mr F’s complaints to the Ombudsman and Council. I have also had regard to the Council’s responses and applicable legislation. Mr F also commented on a draft of this decision.

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What I found

Background

9. Councils are Food Authorities under Section 5 of the Food Safety Act 1990 and have statutory duties to enforce the law in relation to food. Their primary role is to ensure food is produced, stored and handled without risk to the health and safety of consumers. Duties include food hygiene inspections (all food businesses) to ensure compliance with the Food Safety and Hygiene (England) (Amendment) Regulations 2016. Councils have powers to enter and premises and seize contaminated food under the 1990 Act.
10. The Working Time Regulations 1998, also referred to as the Working Time Directive (the Directive) state that an employee cannot work more than 48 hours a week, unless that employee opts out, in which case they can.
11. The Public Protection Partnership (PPP) is a shared service delivering Environmental Health, Licensing and Trading Standards to over 450,000 people and 10,000 businesses on behalf of three authorities (Partners), Bracknell Forest Council, West Berkshire Council and Wokingham Borough Council.

What happened

12. In January 2019, Mr F raised a complaint concerning failings by his employer in relation to food safety, working conditions and a breach of the Directive. This led to an inspection by the Council’s Public Protection Partnership. It determined that Mr F’s employer was not in breach of its obligations and were in good compliance with food hygiene. However, the Council did apologise for shortcomings in its own process, including not being clear to Mr F on the inspection process and delays in sharing information with the Public Protection Partnership.
13. In March 2019, Mr F raised complaints against the Council’s officers, citing collusion and for failing to take legal enforcement action against his employer.
14. In June 2019, the Council determined the Public Protection Partnership had acted reasonably and within its procedures when conducting their investigation of food safety matters raised by Mr F. Still dissatisfied, Mr F escalated his complaint to the final stage of the Council’s complaints policy.
15. In July 2019, the Council issued its final responses to Mr F. It did not uphold his complaints concerning food safety and noted a history of good compliance in this regard. The Council also concluded that there did not exist any evidence to suggest any of its officers lacked good values when reviewing Mr F’s concerns. In a separate letter, the Council also confirmed it could not take actions as regards to Mr F’s complaints concerning his employer breaching the Directive. This is because following a review of Mr F’s contract of employment, he had agreed to opt out of the Directive meaning it was not applicable to his circumstances.

Assessment

16. By law, I do not have jurisdiction to investigate a complaint concerning employee personnel matters, including working conditions or breaches of the Directive. This is because these are not an administrative function of the Council. I recognise that Mr F makes a distinction in that his complaint concerns the Council not taking enforcement action, but to make a determination on this issue would be to decide a matter which is outside of our jurisdiction. As outlined (above), the Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. The issues in this respect are ultimately a question of employment law and a legal matter between Mr F and his employer.
17. In any event, the Council have decided to take no action against Mr F’s employer since it reviewed his contract of employment and payslips and determined he opted out of the Directive. Similarly, it noted that Mr F completed a health assessment on the date of entering his contract of employment and thought it unlikely his employer was falling short of its obligations. I am unlikely to find fault in how it reached this view.
18. As regards to the measures taken by the Council concerning Mr F’s food safety complaint, I must assess whether fault (if any) has resulted in the Council causing a significant and personal injustice. This means I must determine whether Mr F specifically has suffered serious loss, harm or distress by the Council due to concerns he has against his employer. In my view, Mr F’s grievances are principally by virtue of his employment relationship. The Council’s decision not to take enforcement action against an entity for food safety concerns is not a matter which affects him personally. Similarly, the individual actions and conduct of Council officers investigating food safety concerns are not to the personal detriment of Mr F. On this basis, I do not consider Mr F has suffered a significant and personal injustice by the Council and for this reason, I do not propose to investigate or assess fault.

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Final decision

19. I will not investigate this complaint because I am unlikely to find fault by the Council or that the complainant suffered a personal injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman