Deserving the protection of the law? Government urged to shield shopworkers from violence

"Everybody should be safe at work. Shop workers are the lifeblood of our local high streets and communities. During the Covid-19 pandemic, retail workers kept our communities going and they deserve our thanks and gratitude. It is even more shameful, then, that abuse and assaults against shopworkers went up during the pandemic, and it is completely unacceptable that these attacks have become so commonplace in our society.”

The Home Affairs Committee has recently published a damning report stating that violence and abuse towards shop workers is now endemic in British society, with the policing response failing to match the scale of the problem[2]. With the recent relaxation of Covid-19 restrictions producing inconsistent messaging on key issues such a face masks, in this article we look at the challenges faced and what businesses can do to keep their staff safe.

Going home safely

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[3][4]. Research continues to highlight that abuse against shop workers is the biggest employment risk to have materialised as a result of the ongoing pandemic[5].

The Committee’s report, “Violence and abuse towards retail workers”, echoes these findings, in particular noting:

• The Association of Convenience Stores (ACS) found that 89% of individuals working in local shops had experienced some form of abuse.
• The Co-op reported a fourfold rise in incidents of violent crime between 2014 and 2020.
• The British Retail Consortium reported that the number of incidents recorded last year amounts to the equivalent of one a minute during a typical shopping day.
• USDAW reported that 76% of shop workers said that abuse has been worse during the Covid crisis.

Unfortunately, the Committee found that the policing response to retail crime is failing to match the rising tide of violence and abuse and is therefore calling for urgent improvement, including:

• The expansion of neighbourhood policing teams who can rebuild relationships with retailers, identify prolific offenders and respond quickly to local reports of retail crime.
• Proper recording of violence against shopworkers including mandatory recording of offences committed in a retail environment to allow for better monitoring of the scale of the problem and patterns of local crime.
• A new criminal offence to send a message that assaults on retail workers will not be tolerated, with the Government urged to consult urgently on the scope of the new offence.
• Police and Crime Commissioners and Chief Constables to provide local leadership in giving greater priority to retail crime and the creation of Business Crime Reduction Partnerships for all areas, including supporting small independent shops.
• An Employers Charter setting out how employers should support and protect staff including reporting, security measures, training, counselling, and banning prolific offenders.
• Safer Streets Fund resources to support measures on high streets and retail settings.

A standalone criminal offence

Of particular interest is the proposal of a new standalone criminal offence to protect retail workers from violence and abuse. At present, a variety of existing criminal offences can be used to prosecute violence and abuse towards retail workers. Key examples include:

• theft, robbery or burglary under the Theft Act 1968;
• assault, unlawful wounding or grievous bodily harm under the common law or the Offences Against the Person Act 1861;
• harassment or putting people in fear of violence under the Protection from Harassment Act 1997; and
• affray or threatening or abusive behaviour under the Public Order Act 1986.

Sentencing guidelines also require that the courts treat offences committed against those working in the public sector, or providing a service to the public, as an aggravating factor, making the offence more serious; however, the courts can differ in their view as to whether a retail worker is to be considered as falling within this definition, it being more regularly applied to emergency workers. 

In the 2019–21 parliamentary session, a Private Member’s Bill entitled the Retail Workers (Offences) Bill 2019–21[6] would have made certain 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. The Bill did not pass through Parliament and therefore did not become law. There was also some debate on whether an offence of assaulting a member of shop staff should be created during the passage of the Offensive Weapons Act 2019. More recently, campaigners have highlighted the Scottish Parliament’s unanimous passing of the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act which became law on 24 February 2021. The Act created a new statutory offence of assaulting, threatening, abusing, obstructing or hindering a retail worker and added a specific aggravating feature where the offence relates to the enforcement of an age related restriction. It will be interesting to monitor the impact this new offence has on the number of recorded assaults against retail staff.

The report also notes that other categories of workers, such as emergency workers and customs officers, have been afforded extra protection by the law in recognition of the service they provide. The Committee believes that offences against retail workers must be treated with the same seriousness, with further protection from the law.

A confused approach?

The 19^th July marked “Freedom Day” for those living in England, as the Government decided to go ahead with the final stage of its roadmap out of lockdown.

However, since the Prime Minister’s confirmation that remaining Covid restrictions, such as the wearing of face masks and social distancing, would be removed, some councils and businesses have elected to keep certain rules in place.

Yet the supposed tailoring of these rules has the potential to lead to significant confusion. Indeed, the National Union of Rail, Maritime and Transport Workers (RMT) has recently warned of the threat of violence to staff over the inconsistent messaging on face coverings on public transport[7].

For example, the Mayor of London is urging Londoners and visitors to remember that face coverings remain compulsory on all TfL services. This means passengers on the Tube, bus, tram, DLR, Overground and TfL Rail must continue to wear a face covering in stations and for the duration of the journey[8].

In response, General Secretary of the RMT, Mick Lynch said:

“Whilst we welcome the approach from the London Mayor this morning, which is consistent with the policies currently adopted in Scotland, Wales and on Eurostar, we now have the ludicrous position where a passenger travelling through London will have different rules on the tube and the main line services.

"There will also be a change of policy on trains at the Welsh and Scottish borders which is a total nonsense and will leave staff right at the sharp end and dangerously exposed when it comes to enforcement… [The government] cannot step back from this critical issue and leave our members set up as punch bags.”

What should businesses do?

As we enter a potential minefield as to how to behave in a post-Covid world, what should businesses be doing to protect their staff? Businesses have a responsibility to take reasonably practicable measures to protect staff from foreseeable risks. Where staff interact with members of the public dealing with violence/aggression is clearly a foreseeable risk.

To address these risks businesses should consider the following (non-exhaustive) list:

• The type of work undertaken – does the nature of the business increase the risk? Traditionally we would ask does the business hold large sums of cash/high value goods increasing the risk of theft/robbery? Does the work involve potential known flashpoints, for example age restricted sales? Now we need to ask- will staff be expected to engage with customers on the need to wear face coverings? Will staff need to check vaccination status as a condition of entry such as is being suggested for nightclubs?[9]
• Are staff lone working?
• Location – consider the profile of the area – what do crime statistics and local policing priorities indicate? Statistics themselves deal with reported crime so only tell part of the story. Are there any issues around specific times of the day - opening and closing when less people will be around? Does the area change depending on the time of day – if premises open early/close late, what is the area like then? A busy high street may be a different prospect after hours.
• Consult with staff – the research indicates incidents are under reported to employers and the police. The staff who work (and potentially live) in the area can give a more holistic view than statistics alone. What do they say about the area? Do they have any concerns? What is their feedback on interactions with customers around face coverings and other COVID control measures in place?
• What are other businesses nearby doing? – while businesses compete for customers they share a common interest in protecting staff members and dealing with risks in the locality. Is there a scheme to share information between businesses in the area?
• Are current security measures adequate? – consider the role staff undertake. Where in the premises are security measures they located? Where are staff most at risk? Do they have access to security measures at these locations? Do new requirements mean new potential flash points?
• Reporting- Is there an appropriate mechanism for staff to report incidents and is it being used? Again, the key to understanding the issue is to encourage staff to report and talk about it.

Once risks have been evaluated, the next step is to consider if additional measures are needed. The assessment may indicate no new measures are required, but it is important this is reviewed (and documented) periodically or following an incident to demonstrate a business has monitored the risk.

When considering the risks of violence/aggression control measures fall broadly into two categories:

• Physical: such control measures will include visible deterrent measures such as CCTV, warning signs, alarms, lighting in poorly lit areas, personal alarms, secure fencing and security personnel.
• Behavioural: such controls may include an avoidance of lone working in certain situations, as well as staff training in conflict resolution and de-escalation.

The statistics present a worrying trend for retail and other businesses where staff are engaging with members of the public. Violence and aggression against customer-facing staff is clearly a foreseeable risk, which businesses are under a legal (and moral) duty to take action against. This action is to assess risk, consult with staff and take reasonable precautions to make workplaces safer. We know that regulators such as the HSE and local authorities are increasingly monitoring businesses’ arrangements for safety and security. A clear message is now needed that no one should feel unsafe at work.

 

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