Her Majesty’s Government of Gibraltar has become deeply concerned about credible reports of possible breaches of the law and sub-optimal business practices in food delivery services, and is therefore publishing a circular on the obligations and best business practices for takeaway food delivery services.
This circular is intended as a reminder to all food delivery service providers, but especially takeaway delivery businesses, of important legal requirements, principles and protocols they must abide by.
Government reminds that every delivery business in Gibraltar must have an appropriate business license to carry out delivery services, however licensed restaurants that deliver their own food are not required to have a separate business licence for deliveries.
Drivers must be on a full licence, not a learner’s licence, and must be properly insured. In addition, the requirement to hold the right insurance applies to all drivers, whatever the form of transportation (e.g. motorcycles). Drivers should be covered by the appropriate motor vehicle insurance, and a declaration should be made to the relevant insurers that the vehicle will be used for commercial activity.
In order to comply with Gibraltar legislation, a motorcycle must be subject to an insurance policy in respect of liability for the death of or bodily injury to a person or damage to property caused by, or arising out of, the use of the vehicle on a road. It is the responsibility of the business as the employer to ensure that the correct insurance policy (or policies) are in place for its drivers.
Drivers must adhere to speed limits and safety protocols and must respect all traffic laws, especially those on speeding and safety. Drivers must also adhere to the Gibraltar Highway Code.
Under the principle of vicarious liability, an employer can be held responsible for the wrongful acts of an employee but can also be held liable for wrongful acts by someone whose role is ‘akin’ to that of an employee (e.g. a person who is self-employed but is treated as an employee). Takeaway delivery businesses providers must bear in mind that drivers working at the control and direction of the business will not be considered self-employed but as employees of the provider.
All businesses and drivers must abide by food hygiene legislation. This means that all food must be protected from risk of contamination, for example by ensuring that raw food does not contaminate cooked food in motorcycle trunks and boxes. Under applicable legislation, any person who provides a vehicle for the movement of food must ensure that the interior of the vehicle and any surface which the food is liable to come into contact with must be kept in a state of cleanliness to prevent contamination of food.
In addition, food temperature is critical to food safety and quality. If boxes and bags need to keep food hot or cold, then choose appropriate insulated carriers. Where possible, separate hot food from chilled food in the insulated carriers. Hot food should be provided to customers at 63°C or above and cold food at 10°C or colder. To achieve this, it is recommended to keep distances short and limited to within a 30-minute radius.
Periodic checks should be carried out to ensure the food is maintained at a safe temperature, either hot or cold, and should be recorded in the providers’ due diligence records. If ice packs are used, these should be cleaned and sanitised as per the insulated box or bag in between every use.
HMGoG is confident that takeaway food delivery businesses want to do abide by the law and by best practices. It is the business’ responsibility. However, in order to stop possible abuses, the Government will continue to monitor the huge and rapid growth in this sector.
The Government wants to encourage competition in the market, but also to ensure a level playing field for all operators, and that all applicable laws are being respected. Therefore, if necessary, the Government will use its enforcement powers and/or consider legislating to ensure that a level playing is achieved.
The Minister for Transport, the Hon Paul Balban, said: “The food delivery business has seen exponential growth especially during the pandemic. Numerous companies have risen to the challenge and been able to service a community locked down effectively. This circular lays down business requirement and aims to provide this new industry with details of their obligations in respect of employment, traffic and transport, health and safety and business requirements.”