Liability nightmare

Violence against staff is an area of increasing concern across licensed retail. Most physical attacks are related to crimes such as theft and robbery and when staff confront angry customers or troublemakers. Certain staff, such as door supervisors, face inherent risks as do other staff who step in to support them. Security responsibilities are also often left with licensees themselves, who can be at risk when keeping order and enforcing licensing legislation.

There have also been serious injuries to customers and even deaths resulting from the actions of employees, particularly doorstaff. Now, thanks to new proposed legislation and certain legal decisions, licensees are having to bear a greater burden of responsibility - and costs. It seems pub and club owners may be responsible for the actions of door supervisors even if they do not directly employ them, and the government is looking to offload compensation costs for injuries to staff onto employers.

Vicariously liable

A recent Court of Appeal case has highlighted the issue of doorstaff responsibility. Following the decision in Hawley v Luminar (2006) it seems that pubs and clubs may be responsible for the actions of door supervisors even if they do not directly employ them. If an employee, acting in the course of their employment, injures another, even if that employee's actions go well beyond what they are trained for, their employers are held vicariously liable and have to meet any consequent award of damages. In this case the door supervisor was employed by an outside contractor but the court upheld the original judgment that he had been seconded to Luminar, which was therefore responsible for his actions even though his immediate employer had the right to hire and fire and also paid his wages.

In reaching this conclusion the court carefully considered who had control - and therefore responsibility for - the doorman's actions. It found that Luminar had day-to-day responsibility.

The Hawley decision underlines the importance for pub operators that use door supervisors to look critically at how this service is provided, who has responsibility for supervision and training, the terms of service contracts and the insurance arrangements. Simply relying on the fact that doorstaff hold a Security Industry Authority licence or that provision of security staff has been contracted out does not absolve licensees from their responsibilities and potential legal liability.

Another recent development threatens to make licensees liable for paying compensation for injuries to their employees. Presently, when a member of staff is injured in an assault, they can seek compensation under the government's tariff-based Criminal Injuries Compensation Scheme. Lately, however, there has been a trend to pursue compensation claims directly against the employer through the civil courts, primarily on the grounds that the employer has failed to reduce the risk of violent assault.

Last December the government's Green Paper on supporting victims of crime suggested focusing its own compensation payments on those who have suffered serious injury, excluding compensation entirely for lesser injuries and injuries incurred in the course of employment. It suggests instead that compensation payments should be met by employers.

It is anticipated that the Green Paper will lead to changes in the law during 2006, affecting licensees in two ways. Firstly, your standard "employer's liability" insurance policy may not cover injuries to staff arising out of violent crime if there is "no fault" on the part of you, their employer. Secondly, the withdrawal of government compensation for victims with lesser injuries is likely to encourage more claims through the civil courts.

Should these changes, presently at consultation stage, be adopted you will need to look carefully at your insurance provision. It is, unfortunately, inevitable that, in light of any increased risk placed directly on you as employers, insurance premiums will rise.

IIn a future issue Your Business will look at the steps licensees can take to reduce the risk to staff, customers and their businesses.