Violence and harassment in the workplace: Bill seeks proactive measures for protection of employees

We consider whether the proposed amendment to the Health and Safety at Work Act, aimed at curbing violence towards retail workers, will require businesses to make changes beyond those currently required by health and safety legislation.

Since our podcast, ‘Violence against retail workers: the law & what it means for retailers’, which discussed the government’s announcement that the assault of a shop worker was to be made a separate criminal offence in England and Wales, the Health and Safety at Work Act 1974 (Amendment) Bill has been introduced in the House of Commons[1]. It is a Private Members’ Bill, and if enacted will require employers to take active steps to prevent violence and harassment in the workplace. While an admirable goal and one which several organisations have raised over recent years (including a long running campaign by the shop worker’s union USDAW supported by various retailers[2]), we ask will the Bill require businesses to take steps above and beyond those currently required by health and safety legislation?

It is clear this remains an ongoing issue. Statistics continue to indicate around two thirds of shop workers experience at least verbal abuse[3]. A survey carried out by the Crime Survey England and Wales, confirms 649,000 incidents of violence were reported in 2022/23[4]. Some companies have developed plans to specifically tackle the issue[5].

The Bill will require:

• Employers to take proactive measures to prevent violence and harassment in the workplace;
• To introduce specific protections for women and girls in the workplace; and
• The Health and Safety Executive (“HSE”) to create and publish a Health and Safety Framework on violence and harassment in the workplace, including violence in the workplace pursuant to gender[6].

Although the history of these changes concern retail staff, it is important to note the duties outlined below apply to all businesses.

Existing duties

All businesses will be familiar with the duty to take reasonable steps to protect an employee's health and safety at work[7]. This is actioned via an assessment of the risks employees face[8] (e.g. lifting injury) and the implementation of control measures to either eliminate or reduce that risk (e.g. lifting equipment and/or manual handling training).

Where staff interact with members of the public, the risk of violence/aggression is likely to be a foreseeable one. The HSE has published guidance addressing the issue[9]. Retail staff deal with cash and sometimes high value goods making shops potential targets for theft and robbery.

Premises may be located in higher risk areas. In addition, and importantly for a risk assessment, there are specific transactions which surveys previously undertaken by USDAW highlight as potential flashpoints. These include alcohol and other age-related sales[10], where the emphasis is on the staff member to enforce the law by refusing to serve customers (or face sanctions personally for failing to do so). The most recent survey indicates 70% of incidents are shoplifting related[11].

What should businesses do?

Businesses have a responsibility to take reasonably practicable measures to protect staff (and non-employees) from foreseeable risks. Where staff interact with members of the public (particularly around the flashpoint areas referred to above) dealing with violence/aggression is a foreseeable risk. The risk arguably increases when staff are lone working.

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

• The type of work undertaken – does the nature of the business increase the risk? Does the business hold large sums of cash/high value goods increasing the risk of theft/robbery? Does the work involve potential known flashpoints e.g. age restricted sales?
• 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.
• Consult with staff – research indicates incidents are under reported to employers and 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 concerns? Are there any issues around specific times of the day – opening and closing when fewer people will be around? Does the area change depending on the time of day? A busy high street may be a different prospect after hours.
• What are other businesses nearby doing? While businesses compete for customers, they share a common interest in protecting staff and dealing with risks in the locality. Is there a scheme to share information in the area?
• Are current security measures adequate? Consider the role staff undertake. Where in the premises are security measures located? Where are staff most at risk? Do they have access to security measures at these locations?
• 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 to reduce the risk are required. A premises does not need to be turned into Fort Knox for a business to be legally compliant – reasonably practicable (not all possible) measures, must be taken[12]. The assessment may indicate no new measures are required, but it is important this is reviewed (and documented) periodically to demonstrate the risk is being monitored.

When considering risks of violence/aggression, control measures fall broadly into two categories – physical and behavioural.

Physical control measures include visible deterrent measures such as CCTV, signs warning CCTV is in operation, alarms, lighting in poorly lit areas, personal alarms, secure fencing, security personnel etc.

Behavioural controls may include an avoidance of lone working in certain situations and staff training in conflict resolution and de-escalation.

Conclusion

The detail of the Bill is yet to be published but in light of the above existing requirements, it is questionable whether the requirements will add anything to existing duties. In respect of the requirement to introduce specific protections for women and girls in the workplace, again does this add anything to existing requirements for young people[13] and female workers given risk assessments should consider reasonably foreseeable risks to all staff? How does this interact with equalities legislation?

HSE already publishes guidance on violence in the workplace and reports on injury statistics. More will be needed from the detail of the Bill to understand what improvements further obligations would have. 

At first glance the Bill seems to add little to existing requirements. Given there are clear issues identified by statistics over a number of years, it appears to be a case of properly enforcing existing requirements on businesses as opposed to new legislation. The question may be asked as to whether this is simply passing the buck onto a business in circumstances where police have inadequate resources to address offending.

We will continue to monitor the Bill’s progress and provide updates.

For further information on how we can help your organisation, please refer enquiries to the Safety, Health and Environment team.