Jayne Simpson, Hill Dickinson
Employers owe a duty to their employees to provide a safe working environment and this includes taking steps to protect them from acts of criminal violence in the workplace perpetrated by members of the public. What does that mean, who is at risk and how far must employers go to ensure that they have complied with that duty? While this is not of course an issue to be taken lightly, many will no doubt be pleased to hear that the courts are currently demonstrating a common-sense approach to assessing the balance between the risk of violence in the workplace, and the commercial realities of operating premises visited by the public.
Who is at risk?
Health & Safety Executive Guidance, HSG133 defines violence to staff at work as:
“Any incident, in which an employee is abused, threatened or assaulted by a member of the public in circumstances arising out of the course of his or her employment.”
Basically, anyone who has contact with members of the public is at risk of violent attack during the course of their employment. Employees at increased risk include those who handle money, those who work alone, especially during night shifts, and those whose work takes them out of the workplace
Court attitudes — how much must an employer do?
Looking at case law, the starting point at common law is the 1968 case of Stokes —v- Guest, Keen and Nettlefold which sets out the duty to provide a safe working environment and the test to apply in assessing whether the employer has done so. The court will look at whether an employer has weighed up the risks in terms of likelihood of injury occurring, and potential consequences if it does; and balance these against the probable effectiveness of precautions that can be taken to meet those risks and the expense and inconvenience involved in doing so. If the employer is found to have fallen below the standard of a reasonable and prudent employer then they are negligent.
More recently, Winnard & O’Connor —v- Coral Group Trading Ltd (2012) and the Court of Appeal case of Kerry Nicholls —v- Ladbrokes Betting & Gaming Limited (2013) provide an insight into how the judiciary are currently assessing whether an employer has fulfilled its duty in this context.
Licensed retail premises
In Winnard & O’Connor the two claimants were manager and trainee at a betting shop in Middleton, Manchester. On 19th September 2008 at 8:20pm the claimants were subjected to an armed robbery in which they were threatened with a shotgun and meat cleaver. The employees offered no resistance and handed over £700 to the robbers.
The shop had been designated at low risk of robbery by the employer who deployed only cash minimisation and a time lock safe as deterrents. Was this enough?
There had been a spate of robberies in the Middleton area at that time affecting other traders and post event the employer installed CCTV and a magnetic lock system to be deployed at times of heightened risk.
The claimants said that the lack of security measures made the shop more alluring to robbers. If the employer had installed high counters, CCTV, magnetic lock, security screen and panic button, it would have deterred robbers and prevented the psychiatric injuries of depression and anxiety suffered. The claimants said that there was a failure to see the direct link between the lack of security measures and the potential of robbery.
However the Court disagreed. It was not possible to say what effect the presence of the screens, or absence of them, played on the criminal mind. The causative potency of the screens was accepted in so much as they would prevent a robber jumping over the counter or getting behind it but the more important question was the effect of the screens in safeguarding employees from psychiatric injury. Given there was no safe haven for employees to escape to behind the screens, they were far more likely to suffer psychiatric trauma if the screens were breached in front of them. The screens would deter till-dipping and pilfering but not a robber with the determination apparent in earlier robberies.
As to providing the other measures, it was accepted that determined robbers would not abandon their plans, and although they could have a deterrent effect, there was no proof they actually would in this instance. For instance a competitor’s betting shop in Middleton equipped with CCTV and magnetic lock was still subject to robbery just a month later.
The key is the security measures that would have materially influenced the outcome of a robbery which was performed and of course a cost benefit analysis is also relevant. If a shop’s turnover is £60,000 a year and the security measures cost half that, there is a gross disproportion under the reasonable practicability test.
In Nicholls, the primary issue was whether there should have been a policy to use a magnetic lock and to install lighting so that the lock could be used practically after dark. Lord Justice Lloyd pointed out that, “Operators of retail premises are in the business of allowing customers into their shops rather than restricting them from entering.” The defendant installed the lock at premises where it was possible to do so, in order to provide additional security at times of perceived additional risk, namely during opening and closing when the employees were away from a secure area and the shop was neither fully open nor closed for business. Using the lock in that way was a highly effective measure and no inconvenience to anyone.
However using the lock to effectively vet customers on entry was quite another matter. All retail operators are aware that robbery is a possibility. Installing the magnetic lock meant that it was possible to insist on its operation; but if these twin considerations were adequate to impose a duty to ensure the magnetic lock is operated then there would be no basis for saying that it should only be operated in the hours of darkness. Robbers do not confine their activities to these hours.
Other premises
Both these cases involved licensed retail premises, but the principles apply equally to any workplace which involves cash handling, from banks and grocery shops to a manufacturing unit. The key point is that an employer must look at the working environment with a view to deterring violence/robbery and look at the potential for reducing, minimising or eradicating psychiatric harm to their staff, if they are presented with a violent confrontation, whether that is an angry customer because the procedures of the cash handling are not right, or robbery.
Where does this leave us?
The refreshing point to bear in mind about recent case law is the willingness of the judiciary to ensure that operators of banks and retail premises can continue to operate without being held hostage to a concept that because a security device is available and could be used, it should be at all times and cost, potentially suffocating commerciality.
This reflects the reality of the situation that retailers operate in. They want the customers to enjoy the experience of shopping and not feel constrained by an armed fortress.
Overall the judicial approach demonstrates a common sense attitude to assessing the balance between the risks of violence and commercial operation.
What practical steps should be taken?
A proper approach requires a balance to be struck between (i) the probable effectiveness of the precaution that can be taken and the expense that it involves, and (ii) that the reasonable steps to be taken by the employer were to deter robberies: no employer could be expected to go so far as to prevent any robbery taking place at all.
Put in context
Just because a security device exists it does not mean there is a duty to install and operate it at all times no matter how big or small the business is or high or low the risk is.
Lord Justice Floyd in Nicholls stated “The defendants were aware, as are all retail operators, that robbery is a possibility.” It was also the case that installation of a magnetic lock meant that it was possible to insist on its operation. But if these twin considerations were adequate to impose a duty then there would be no basis for saying that it should only be operated in the hours of darkness. These considerations show that a risk coupled with ability to operate a magnetic lock is not a sufficient basis for saying that it should be operated.” There must be evidence of an enhanced risk to those particular premises.
In our next blog, tips and guidance on the practical steps that can be taken
The Safety Conversation with SHP (previously the Safety and Health Podcast) aims to bring you the latest news, insights and legislation updates in the form of interviews, discussions and panel debates from leading figures within the profession.
Find us on Apple Podcasts, Spotify and Google Podcasts, subscribe and join the conversation today!
