Retailing in 2024 – liability considerations for UK retailers

In the first article of this retail series, we provide a snapshot of employers’ liability trends in the retail space, along with the likely policy changes to expect under a Labour or Conservative Government.

Background

The risks to retail staff continue to escalate with the British Retail Consortium highlighting that incidents of violence and abuse against shop workers increased by 50% to 1,300 per day from 2022 to 2023.

Following a campaign involving some of the biggest retailers, the government announced earlier this year that assaulting a retail worker would be made a standalone criminal offence by amending the Criminal Justice Bill. However, as the Bill was not pushed through Parliament’s ‘wash-up’ ahead of its dissolution on 30 May, the Bill will not become law. As such, any legislative measures to protect retail staff will now fall to the next government to consider and introduce.

Protecting retail staff – the current legal position

• Retailers will be aware of their legal duty to take reasonable steps to eliminate the foreseeable risk posed to its workforce, including assaults, to protect the health, safety and welfare of employees, under the Health and Safety at Work Act 1974. Taking practical steps should help retailers continue to protect their staff from the rise in assaults, for example: Investing in targeted training with ‘role play’ for de-escalating and dealing with potentially volatile situations;
• Expanding the use of CCTV and body cameras;
• Providing clear access to alarm systems or ‘panic alarms’ for an additional safety net for staff who may feel under threat;
• At ‘high risk’ times, such as in the evening or where there are fewer staff or even lone workers, utilising a ‘check in’ system at regular intervals;
• Streamlining the processes for reporting incidents and support staff affected to report to the police;
• Revisiting risk assessments to consider any other adequate control measures each time an incident of verbal or physical abuse occurs; and
• Offering post-incident support to their workers and identify any knowledge gaps that need to be addressed via post-incident training.

For the prolific reoffenders retailers can press for a criminal behaviour orders (CBO) following a criminal conviction. There must be anti-social behaviour for a CBO to be considered. The information retailers can gather to assist the local authority making a CBO against an individual may include:

• Diary sheets detailing dates, times, what happened and how it impacted you/your business;
• CCTV recordings;
• Photographic evidence;
• Taking statements from staff affected to include the impact on them professionally and personally.

A rise in discrimination claims

There has been a rise in a broad number of Equality Act 2010 (EA) claims made against retailers. Evidence demonstrating that the retailer has done everything they could be expected to do under the EA is key in defending such claims. It is good practice to have a clear equality policy and appropriate plans in place, coupled with regular training of staff on their obligations and responsibilities under the EA.

Retailers have a legal obligation under the EA to ensure their workplace is free from discrimination and harassment. Individuals are protected from being discriminated against in relation to a protected characteristic which include: age, disability, sex, religion/belief, race, sexual orientation and gender reassignment.

There are different types of discrimination including direct, indirect, discrimination arising from someone’s disability, discrimination by association and discriminating against someone because you incorrectly think they have a protected characteristic. 

The obligation on retailers under the EA Act extends beyond staff and requires that they take steps to not discriminate against customers when they buy or receive goods either online or in store.

One of the key challenges for retailers under the EA is understanding and making reasonable adjustments for disabled people who want to buy from them. Determining what is reasonable depends on a number of factors such as the size and nature of the business. Employers should provide training to staff to assist customers with impairments so they can access the goods they wish to purchase.

Likely retail policy changes under a Labour or Conservative Government

Broadly speaking, both parties have recognised there are grey areas when it comes to retail sector policies.

Labour Party

In April 2024 Labour published their ‘5-point plan to breathe life into Britain’s high streets’. This plan included tackling anti-social behaviour by introducing more neighbourhood police, rolling out banking hubs, replacing business rates, introducing new laws to tackle late payments and introducing the ‘right to buy’ scheme to fill the growing number of empty premises on our high streets.

Greater detail on these pledges was then laid out in their manifesto when they pledged to “create a new specific offence for assaults on shopworkers to protect them from threats and violence”, which was then reaffirmed as a commitment by Alex Norris, Shadow Policing Minister. Mr Norris referred to an amendment to the Criminal Justice Bill which would have made assaulting a retail worker a standalone offence (this Bill was dropped during wash-up). Labour also detailed their ambition to replace the business rates system, ensuring they raise the same revenue, but in a fairer way to support businesses.

Conservative Party

The Conservatives approach towards the retail sector echoes several of the sentiments outlined within the Labour manifesto, especially when it comes to addressing crimes against retailers by pledging to introduce “tougher sentences for assaults against retail workers”.

As part of their plan to ‘back businesses to invest, innovate and to trade’, they outline a set of pledges such as supporting ‘Mansion House reforms’ which enable the financial sector to create new opportunities for capital. Their manifesto also recognises the need to ease the financial pressure on consumers by giving greater, more transparent options and therefore, pledge to create a new scheme that would force petrol retailers “to share live information on their prices, helping drivers to get a fair price at the pump”.

Comment

Retail staff are being subjected to increasing violence putting their physical wellbeing and mental health at risk and resulting in personal injury claims. Added to this the rise in discrimination claims, retailers should continue to invest in protective measures to safeguard both their staff and customers.

In terms of concrete policies, it remains to be seen what the retail sector can expect from the next UK government. But with the general election taking place on 4 July and the King’s Speech lined up for 17 July, which will set out the next government's legislative priorities, retailers do not have long to wait to find out. 

Related item: Trends and risks faced by retailers in 2021: UK and US perspectives

Read other items in Commercial Brief - July 2024

Read other items in Personal Injury Brief – October 2024