Case note: Josephine Mitchell & Others v United Co-operatives Limited  EWCA Civ 348
Just occasionally the law reports provide us with a glimpse of the difficult working conditions that some employees have to endure (even where their employer is not to blame for such working conditions). Josephine Mitchell and others, decided by the Court of Appeal at the end of last month, is an example of such a case. The judgment (of Ward LJ) starts like this, “It is a sad feature of our suburban life that some areas are at high risk of crime. One such place is Shaw Road, Heaton Moor, a side road off the main road linking Stockport and Manchester”. Shaw Road had a small parade of shops and the shops included a Co-operative food store where the Claimant ladies were employed as shop assistants. The Court referred to a “Harsh reality” confronting the Co-op and those employed at the shop. The harsh reality was this, “There were two robberies in the eleven years before the Co-op acquired the premises but ten robberies between 25th February 2000 and 7th December 2005. These crimes were committed on 25th February 2000, when a shotgun was produced, 6th November 2001 when the robberies were armed with batons, 16th March 2002 when a knife was used, 13th January 2003, 11th March 2003, 20th December 2003, 24th June 2004 when Mrs Benton and Mrs Goodwin were the victims threatened with a screwdriver, 18th October 2005 and 7th December 2005 when Mrs Mitchell was the victim.”
The Claimants alleged that they had sustained psychiatric injury (specifically post-traumatic stress disorder and anxiety) as a result of the robberies. It was their case that their employer was liable for this and the resultant losses as a result of its breach of an (admitted) common law duty to take reasonable care to keep its employees reasonably safe (applying Swanwick LJ’s test in Stokes v Guest & Others  1 WLR 1776 (CA) as endorsed by Lord Mance in Baker v Quantum Clothing Group  UKSC 17).
Prior to the robberies in which the Claimants were the victims, the Co-op had introduced a series of measures to reduce the incidence of robbery and these included CCTV monitoring, panic alarms, the provision of “smoke notes” which emitted dye when passing a transmitter at the doorway and a mobile security response team. There was evidence that the Co-op’s policy on the prevention of crime compared favourably with that of other retailers. However, the Claimants complained, first, that the Co-op had removed security screens when it acquired the store and should have installed such screens around the till. The second line of the Claimants’ argument was that the Co-op should have provided a security guard.
The Claimants’ claims were dismissed at first instance. HHJ Armitage QC (sitting in the Manchester County Court) concluded that a screen might have had some deterrent effect, but it carried risks for the staff which outweighed any benefit and so reasonable care for their safety did not require the provision of a security screen or enclosure. He was also satisfied that failure to provide full-time guarding did not amount to a failure to take reasonable care.
On appeal, it was held: (1) The Judge had properly distinguished between measures which would have deterred robbers and measures which would have prevented robbery, the former being the correct consideration. His judgment was based on the deterrent effect of screens and of a full-time guard. The reasonable steps to be taken by the employer were to deter robberies; no employer could be expected to go so far as to prevent any robbery taking place. (2) The judge was also entitled to conclude that although a screen might have had some deterrent effect, it carried risks for the staff which outweighed that benefit. The issue was not only what deterrent effect screens would have on a robbery taking place but also what deterrent effect the presence of screens would have to guard the employees against psychiatric injury. (3) There was evidence that the store was running at a loss and a proper approach required a balance to be struck between the probable effectiveness of the precaution that could be taken and the expense involved (small suburban shops did not usually have a security guard permanently stationed).
This case provides a rare example of common law pragmatism in the context of an employers’ liability claim: the taking of reasonable care involves the balancing of competing considerations. The Claimants’ experience was unfortunate (to say the least), but – looked at in the round – their employer was not liable for its consequences.