There continues to be a persistent and alarming spike in retail crime across the UK.
Incidents of violence and abuse against workers, as well as theft and other criminal behaviour, surged to unprecedented levels in 2023, according to the BRC’s Annual Crime Survey Report. A similar record increase was reported in February by Co-op.
The material accompanying the King’s Speech confirmed that the new Crime and Policing Bill 2024 will include measures specifically to crack down on retail crime, by creating a specific offence for assaulting a shopworker and introducing stronger measures to tackle low-level shoplifting.
So what do they mean for employers in the retail industry?
Current obligations
An employer currently has a statutory duty under the Health and Safety at Work etc Act 1974 to do everything ‘reasonably practicable’ to prevent or control the risk of harm to its employees while they are at work. This includes the risk of violence or assault in the workplace by customers or other third parties.
Additionally, the Management of Health and Safety at Work Regulations 1999 require an employer to undertake ‘suitable and sufficient’ health and safety risk assessments, and to put measures in place to eliminate, minimise, or control any identified risks. The employer must then keep the risk assessment and any measures under regular review to ensure they are still fit for purpose, and to determine whether anything else should be introduced or removed.
This review process is something that is often neglected by employers. Investigating incidents that take place in the workplace in an appropriate manner, and consulting with staff should be an integral part of any risk assessment process to try and implement remedial action and prevent similar incidents from happening again, if possible.
An employer’s failure to have risk assessments and appropriate measures in place to eliminate, minimise, or control the risk of assault in the workplace by customers could therefore result in an employee resigning, and bringing a claim for constructive dismissal on the basis that implied contractual terms have been breached.
Guidance for the new measures
It is not yet clear what the proposed Crime and Policing Bill will look like, or how this will impact retailers’ existing obligations as employers.
That means it’s not clear whether doing everything ‘reasonably practicable’ to prevent or control the risk of harm to employees would include reporting any new offences to the police when they happen – although it seems likely that it would – or whether retailers will in fact need to go further, such as publicly promoting the fact they are prepared to take action under any new measures as a deterrent.
Until any legislation comes into force, helpful guidance for employers on shopworker safety is set out in the National Business Crime Centre’s Framework for Employers: Preventing violence and abuse within retail settings. This recommends that employers follow the Health & Safety Executive guidance on managing work-related violence in retail premises, and suggests appropriate measures might include providing personal safety devices for staff, joining a Business Crime Reduction Partnership and having robust procedures in place to report incidents internally and to the police. It also sets out a detailed post-incident support process to assist employers with supporting employees after they have been affected by violence or abuse in the workplace.
It is advisable for retailers to keep a watching brief on the progress of the new offence, so they can factor the new legislation into the measures they take to keep their employees safe at work. It is likely that, as a minimum, employers would need to report offences to the police under the new legislation so that action can be taken.
If employers fail to do this, aside from any potential breach of their obligations as employers, there is of course the obvious issue that they will be little deterrent effect for criminals.
It is also worth noting the new government has expressed an intention to review health and safety guidance and regulations, with a view to modernising legislation and guidance where it does not fully reflect the modern workplace. So, depending on the outcome of that review, there may be further updates on health and safety legislation to follow.
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