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COVID-19 UK: Safety, Health and Environment (SHE) Regulatory - Protecting shopworkers against violence

  • 28 January 2021 28 January 2021
  • UK & Europe

  • Insurance & Reinsurance

COVID-19 UK: Safety, Health and Environment (SHE) Regulatory - Protecting shopworkers against violence

"Shopworkers are saying loud and clear that enough is enough, abuse should never be just a part of the job. Retail staff have a crucial role in our communities and that role must be valued and respected, they deserve the protection of the law.”[1]

We previously reported that the COVID-19 pandemic has left retail staff both at greater risk of contracting the virus and from violence/aggression when dealing with members of the public as well as suggesting some steps a business can take to put itself in the best position to protect staff and deal with the fallout from any incidents[1][2]. Recent research has once again highlighted that abuse against shop workers is the biggest employment risk to have materialised as a result of the ongoing pandemic[3].

In this article we consider the extent businesses and employees can look to the enforcement of criminal law to assist. We also look at how employees can protect themselves against such attacks, including the availability of self-defence and reasonable excuse.

Tempers running high

During this unprecedented time, tempers have sometimes run high and unfortunately there have been examples of staff facing high levels of abuse.

Interim results from Usdaw's annual survey reveal some shocking statistics, including[4]:

  • 76% say abuse has been worse than normal during the COVID-19 pandemic,
  • 85% of shopworkers have experienced verbal abuse,
  • 57% were threatened by a customer, and
  • 9% were assaulted.

Indeed, Usdaw previously issued a call for respect to be shown to retail and delivery staff[5]. Yet, time and time again we see a worryingly high number of incidents across the retail sector. For example, a national supermarket chain has seen a 36% increase in incidents of anti-social behaviour, verbal abuse and physical assaults during lockdown (January – October 2020) compared to the same period in 2019, with one in four frontline workers subjected to violence, abuse or anti-social behaviour. On average this supermarket sees around 730 criminal incidents each day[6].

No business wants its staff to be the victim of violence/aggression. Incidents of violence/aggression contribute to increased staff turnover, absence and poor job performance, and add to work-related stress, an area the Health and Safety Executive (HSE) has confirmed it will be focusing on, as figures show that the rate of self-reported work-related stress, anxiety or depression has increased with the latest year 2019/20 significantly higher than the previous year[7]. It is also deeply disturbing to see read these statistics at a time when shopworkers are doing so much to keep the country running.

Taking the law into your own hands

What happens when the measures above are not sufficient and criminal law enforcement falls short? For years, the BRC and major retailers have lobbied the government to tackle the issue of shopworker abuse and the pandemic has thrown this into sharp focus.

The majority (69%) of retailers say harsher punishments are needed to help stem the rise of violence and intimidation against shop staff.

Alex Norris MP previously introduced the Assaults on Retail Workers (Offences) Bill 2019-21 to make certain violent offences, including malicious wounding, grievous or actual bodily harm and common assault, aggravated when perpetrated against a retail worker in the course of their employment, resulting in an increased penalty being imposed. The Bill was due to have its second reading on 15 January 2021, but has now been delayed.

Interestingly, Morrisons and Sainsbury's have pledged to challenge shoppers not wearing face coverings in store, unless they have a medical exemption. Sainsbury's reiterated it would use security guards to challenge those shopping in groups. Other major retailers have also followed the move and pledged to challenge those who flout the rules[8]. The potential for violence or abuse has been particularly prevalent in situations where responsibility for enforcing legal requirements is imposed upon the individual shop worker on the front line such as with age-related restrictions for certain products. Mask wearing is likely to act as a similar potential flashpoint, whether undertaken by shop workers or security staff. These retailers have also increased the presence of security guards at their stores, while many have used signs to warn customers of the rules before they enter the store.

However, the BRC and unions have previously been strongly opposed to retail staff enforcing the rules, stressing that the industry can only do so much alone. For example, in relation to the wearing of face coverings, the BRC have argued that retailers should be able to call the authorities if there is an incident[9].

Yet, in contrast, the Police have indicated that enforcing face mask rules in shops is "unrealistic and unfair"[10].

John Apter, chairman of the Police Federation of England and Wales, said: "Policing the wearing of face coverings in shops can't be a priority because we simply don't have the resources. Only as a last resort should the police get involved".

This places the individual shop worker or security staff in a particularly unenviable position. They are expected to enforce mask wearing and social distancing in the knowledge that police resources are thinly stretched so take the task upon themselves. By the time the enquiry of the customer has turned violent or abusive, it is likely to be too late for the police to respond to prevent the situation escalating. It would be unsurprising if a shopworker busied themselves with other tasks rather than placing themselves in this potentially volatile situation.

Another consideration is to what extent workers are expected to play detective? If an individual states they are medically exempt from wearing a mask, is this the conclusion of the inquiries or are they expected to ask further questions of customers around understandably sensitive topics?

Common assault or reasonable force?

What happens if a security guard decides to use reasonable force to eject from a supermarket an individual who they consider is not complying with Covid legislation, such as not wearing a face mask? Given the seeming reluctance of the Police to get involved in these scenarios, it is perhaps questionable whether they would intervene or question the action taken by the security guard or staff but the staff member may find themselves the subject of an investigation for a period with the issue hanging over them.

We have previously been involved with a case (prior to the pandemic) involving a security guard who used force to deal with an aggressive and violent individual in a supermarket. The question arose in that case as to whether that security guard had committed an offence of common assault, or whether he had used reasonable force when dealing with the confrontation.

We can certainly envisage such a scenario arising in the present circumstances, with shopworkers under more pressure than ever. With Covid-breaches presenting serious security issues for retail staff, we expect the Government to give urgent attention to protecting these key workers.

Author: Alan Kells, Senior Associate, and Luisa Lister, Professional Support Lawyer

If you would like to discuss any aspect of this article further, please get in touch with a member of our team at sheregulatory@clydeco.com

 

 

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