children with food allergies and the legal implications for
nurseries
Every nursery operator is acutely aware of the risk to children
in their care who suffer from allergic reactions. Life-threatening
reactions can be triggered by a variety of foods, including cheese,
eggs, peanuts, kiwi fruits and strawberries, as well as bee stings.
As well as the devastating personal effect, such an incident can
lead to criminal prosecution (resulting in fines and/or
imprisonment), a civil compensation claim, employment issues and
the inevitable damage to reputation and decline in business.
The duty on nursery operators to look after the children in
their care is enshrined in the Health and Safety at Work etc Act
1974, which provides that any employer has a duty to ensure, so far
as is reasonably practicable, the safety of anyone who might be
affected by the way in which it carries out its business.
The operator should therefore have robust written policies and
procedures that reflect the risks identified by the process of risk
assessments and set out what needs to be done to eliminate those
risks or reduce them to the lowest level possible.
In dealing with controlling the risks identified with allergies,
the key phrase in the Act to be borne in mind is 'so far as is
reasonably practicable'. This is what a court will look at when
assessing whether enough was done to prevent an incident.
The easiest way to prevent an allergy incident is of course to
refuse admission to a child with an allergy. This is not
necessarily desirable, but may be the only prudent course of action
if a nursery does not have the appropriate skill set or resources.
If a nursery does accept a child with an allergy, it will need to
think carefully about the controls to be put in place, both on a
general level and specifically in relation to that child and ensure
that they are doing everything that is 'reasonably
practicable'.
In the case of food allergies, controls to be put in place are
likely to include:
- obtaining full dietary information on admission, recording this
in an easily accessible format and reviewing and updating it at
regular intervals
- making all nursery staff aware of any dietary issues and
regularly reminding them eg by using labels and warning notices in
the kitchen and serving areas etc
- making all nursery staff aware of the signs and symptoms of
allergic reactions and how to deal with them (including providing
emergency contact numbers and an organisational flow chart of who
will do what in an emergency to be kept in a specific folder for
that child)
- communicating regularly with the parents of a child with a
known allergy
- requesting other parents not to allow their child to bring
certain foods into the nursery. This might be extended to informing
other parents of the specific nature of allergies suffered by other
children in the nursery, whilst ensuring confidentiality
- taking steps to ensure food preparation areas are kept
separate
- taking steps to ensure that any change in food supplier is
known and assurances about their products obtained and/or asking
parents to provide food or a list of suitable branded food
- staff training, including an annual update. Training could
include a simulated allergy reaction. Attendance at any training
should be recorded
- ensuring (where appropriate) that handwashing facilities are
equipped with disposable hand towels to minimise cross
contamination of allergens
Controls are, however, useless unless they are implemented.
Checking that controls are being followed can be done by way of
monitoring, which should be recorded in writing. If there are any
incidents or 'near misses', the controls (and the policy documents
recording these) need to be amended to reflect lessons learnt and
any amendments passed on to the nursery staff.
Operators must impress upon all of their staff the importance of
knowing about the allergies of any children in the setting, and of
complying with all of the setting's processes and procedures.
