Mitchell & Ors v United Co-Operatives Ltd

An employer’s duty to take reasonable care for employees’ safety requires a balance between the likelihood and consequences of injury, the probable effectiveness of precautions, and their expense and inconvenience. The duty requires reasonable measures to deter workplace robberies, not measures guaranteeing that every robbery will be prevented. Security screens may be rejected where their protective or deterrent value is outweighed by risks to staff, including confinement without an effective escape route. The failure to provide a full-time security guard is not necessarily negligent where the court has considered visibility, access control, likely deterrent effect, cost, business circumstances and prevailing industry practice.

Three employees of a convenience store developed psychiatric injuries after being subjected to separate robberies. They claimed damages from their employer, United Co-operatives Ltd, alleging that the employer had negligently removed security screens and failed to provide a permanent external security guard.

The Manchester County Court, presided over by HHJ Armitage QC, dismissed the claims on 26 November 2010. The employees appealed, contending that the trial judge had failed properly to assess measures which might have deterred the robberies. The central issue was whether reasonable care required security screens or full-time guarding in the circumstances.

Disposition. The Court of Appeal dismissed the appeal. Ward LJ gave the judgment, with which Tomlinson LJ and Lewison LJ agreed.

1. Applicable duty. The employer accepted the common law duty to take reasonable care for employees’ safety. The relevant assessment required the court to weigh the likelihood and potential consequences of injury against the probable effectiveness of available precautions and the expense and inconvenience involved. Ward LJ referred to the formulation in Stokes v Guest, Keene and Nettlefold (Bolts and Nuts) Ltd [1968] 1 W.L.R. 1776, at 1783, recently approved in Baker v Quantum Clothing Group [2011] UKSC 17, at paragraph 9.
2. Security screens. Screens could prevent robbers from immediately reaching the tills or cigarettes and might deter some offenders. Their effectiveness depended on the screens being locked and staff remaining behind them. They might also increase the trauma suffered by staff if determined robbers breached the enclosure and staff had no easy escape route. The trial judge was entitled to prefer Mr Edwards’s evidence and to conclude that the risks to staff outweighed the protective benefit. The evidence did not establish a causal link between the removal of screens and the subsequent robberies.
3. Security guards. The trial judge considered an external guard with control of the entrance, and the difference between full-time and unpredictable part-time guarding. A part-time rota could be observed by robbers. The cost of full-time guarding, the shop’s financial position, evidence that the employer’s approach reflected standard retail practice, and the absence of evidence that comparable convenience stores ordinarily required all-hours guards were relevant to the balance. The judge was entitled to conclude that the absence of full-time guarding was not a failure to take reasonable care.
4. Deterrence and prevention. The trial judge had not confused measures capable of deterring robbery with measures capable of preventing every robbery. An employer could not reasonably be expected to guarantee that no robbery would occur.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 348, 22 March 2012: appeal dismissed.
• Manchester County Court — HHJ Armitage QC, 26 November 2010: the employees’ claims were dismissed.