What issues can arise from the use of security staff within a retail or leisure environment?

Together we are Forbes


13 December, 2023

Claire Opacic

Security guards are a common sight to us all in either retail or leisure settings, particularly by entrances and exits of such businesses, but this role can often be associated with more specific risks that are less associated with other roles and functions, given their requirement to oversee the behaviour of visitors. As a result, it is worth considering if additional risk assessments or training are required by your business for such staff, and even if you have the right level of staff provision for the business' exposure.

Do you have enough security?

When things go wrong it is often a common complaint from claimants' that the presence of a specific security guard would have prevented the event, whether that be a robbery or antisocial behaviour. Sometimes there may be support to say that the presence of a security guard would have put off attempted robberies but this is not however always the case and it is important to consider how the events occurred as well as the issue of reasonableness. In the case of Mitchell, Benton and Goodwin v United Co-operatives Limited [2012]EWCA Civ 348 the claimant employees alleged that they developed PTSD after a robbery at the convenience store run by the Defendant. The store had originally had a glass screen around the cash till, but the Defendant removed it when they took over management of the store. There was found to be a history of 10 robberies at the store in the previous 5 years. The Defendant had installed panic alarms, CCTV, door locks, smoke notes as well as issuing training to staff regarding the risks of robberies. They also provided a part time security guard for a limited period only after a previous robbery. The main allegations concerned the removal of the glass screens and the failure to provide a permanent security guard. The suggestion was that there should be a permanent security guard outside the shop to control access. Given that the business was however already trading at a loss, the court decided that the failure to provide permanent security was not a breach of duty as the economics did not justify the same. Also, there was no evidence that this was standard for small convenience type stores.

There was also a similar outcome in Winnard and O'Connor v Coral Group Trading Ltd [2012] which involved a claim for injury after a robbery at a betting shop in Manchester. The court determined that the shop was at a low risk of robbery, and the steps identified by the claimant that would have allegedly prevented the robbery, including providing a security guard, were not accepted from a causation standpoint as they would not have necessarily prevented the robbery.

Are your staff trained and aware of what is appropriate?

Claims have been presented that staff may have gone beyond the reasonable force required to control the issue and have caused injury or damage as a result. As an employer the business could be vicariously liable for any such complaints. It is therefore important to have appropriately trained security staff who know how to de-escalate situations and understand the extent of their duties. If staff are aware of the correct procedure and can evidence the same, it should help you avoid liability even if a claim is presented.

In Grove v Bailey (T/A Combined Security Services) & Ors [2014] WL 12876920 the claimant alleged that she was subject to battery, sexual assault and unlawful detention by the security guard at a Burger King in Liverpool City Centre. The claimant and her boyfriend were ejected from the shop for making a nuisance of themselves and were intoxicated. No criminal charges were brought against the security guard and a colleague gave evidence that he did not consider that he needed to intervene at all in the incident and the suggestion was that the claimant's recollections were impaired due to her alcohol consumption. As a result, there was insufficient evidence to show that he had gone beyond what was appropriate.

By contrast in Haywood v Somerfield Stores Ltd (t/a Food Giant) [1997] 7 WLUK 173 the claimant had purchased some chicken at a local butcher and had placed them underneath her daughter's pram. She then visited the defendant store. As she was leaving the premises she alleged that the store detective grabbed her on the shoulder and said "I have reason to believe you have not paid for those chickens". The claimant was then led outside the shop, where the store detective repeated the allegation and she was made to empty the contents of the pram in front of the store detective and a security guard before the store detective accepted her explanation. This was witnessed by other shoppers and bystanders. The claimant alleged that she was well known in the area as she was a barmaid at a local club and claimed that since the incident she had suffered damage to her reputation. Whilst her claim for trespass failed as the touching on the shoulder was not sufficient, the court accepted that she had been falsely imprisoned and slandered by the security staff and so some liability attached.

In Yavuz v Tesco Stores Limited [2019] WL 03288421 the claimant alleged that she had paid for her shopping at a self-serve till, but as she left realised she did not have a receipt. She suggested that when she asked the Defendant's security guard for help obtaining one, he accused her of not paying and being a thief. She alleged that he grabbed her arm and forced her to pay twice for her goods. She brought her claim in respect of trespass for the physical touch, and slander for accusing her of theft in front of other shoppers. The security guard in question did have a record for being previously warned over aggressive customer service. The Defendant however denied that he had called her a thief or grabbed her arm. It was accepted that there was no attempted theft but the claimant had not paid twice on the records and there seems to have been some miscommunication between the parties. The court ultimately accepted the defendant's version of events and that the claimant had failed to prove that the word complained of would have caused serious harm, so the claim failed but it appears from the judgment that perhaps poor customer service had contributed to the chances of this claim being brought, where otherwise it may have been avoided completely.

As a final consideration it is important to remember that even if you outsource the provision of security staff liability can still attach for their actions. The outcome in this regard will depend on the level of control exercised over the security staff in question.

An example of this is shown by Hawley v Luminar Leisure Limited ( 1) ASE Security Services Limited (2) and David Mann (3) [2005]EWHC 5 (QB). In this case it was found that a bouncer assaulted a customer of a nightclub, causing brain damage. The nightclub where he worked was deemed to be the temporary employer for the purposes of the claim and was therefore vicariously liable for his actions, rather than the actual agency that employed him. This was on the basis that he wore the club's uniform, he was given instructions by the night club's staff, under the terms of the contract the nightclub could also require his dismissal, and given their level of control, his actual employer did little other then issue his pay. As a result if you do wish to ensure that the risks associated with the provision of security staff remain with an outside company you will need to ensure that they retain a level of input and control over the staff involved and their duties. Alternatively if you choose to exert a greater influence on their actions, training and role you need to bear in mind that this may pass liability to you, if it has not been subject to a separate contractual indemnity.

Ultimately security staff are a required role in many businesses, and failure to provide the same can also create a risk. As such the key factor is to ensure that you have appropriately planned where such staff will be utilised so that there is a clear and reasonable approach to their distribution, and that the staff themselves are suitably trained to avoid unnecessary aggression, restraint or defamatory words. This type of issue may become more relevant to the claims environment going forward after the introduction of the new fixed costs regime in October 2023. A claim for wrongful arrest requiring a civil trial by jury remains exempt from the fixed costs regime. As such as some solicitors look for cases that may prove more profitable this may be an area seized upon to negate the fixed costs restrictions unless businesses are alive to the issues and prevent such types of incidents.

For more information contact Claire Opacic in our Insurance department via email or phone on 01618308817. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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