The new Protect Duty, also known as Martyn’s Law, is set to establish legal requirements designed to improve protective security and preparedness at publicly accessible locations, including shops and other retail spaces.
At the time of writing, the Government has published the Protect Duty consultation findings, and the legislation is expected to become law in 2022. When it comes into force, however, the new legislation will impose legal obligations on businesses, including those in the retail sector, that could open the door on a range of potential personal injury and damage claims should these businesses not have appropriate security and processes in place.
Those retail organisations impacted will likely need to have appropriate physical security and well-established systems that work to assess terror threats, address the potential risks to the public and staff and manage and mitigate these risks.
Which retail businesses will the Protect Duty apply to?
It’s proposed any venue capable of holding gatherings of 100 people or more should fall within the Protect Duty. For retail, this means individual stores, shopping centres and markets, plus retail chains employing 250 staff with a number of outlets, irrespective of the capacity of each constituent retail space.
The Protect Duty will also apply to outdoor spaces under an organisation’s control, so for some retailers, the duty will require them to consider the areas directly surrounding their sites in order to comply.
Generally speaking, the obligations created by the Protect Duty will be greater for retailers with larger premises, while smaller retailers, such as independent shops will be expected to take proportionate and reasonable measures.
What will my retail business need to do to comply with the Protect Duty?
The measures retailers need to take in order to comply with the Protect Duty depends both on the size of the business and locations, and on what measures it already has in place. The consultation proposes any venue capable of holding gatherings of 100 people or more should fall within the Protect Duty.
If your business has existing good physical security and a well-established process to assess and manage security risks, for example, it’s likely well-placed to fulfil most of the new requirements when they are made law.
However, while you may already be meeting a lot of what’s required by the proposed Protect Duty through fire safety and health and safety procedures, you will still need to map your existing procedures into a specific plan for protecting the public and your employees in the event of a terror attack.
This will involve identifying any gaps and planning on how you will fill them with additional procedures or security measures, balancing the needs of both the public and your employees in your risk assessments and plans.
What kind of claims could retail businesses face under the new terror legislation?
If your business is found to breach the Protect Duty, it could open the door to civil claims ranging from personal injury and trauma, to financial losses and loss of future earnings. Costs could include trauma-focused counselling for potentially large groups of people. Media attention could contribute to these claims and might also create reputational damage to your retail brand.
How can retail businesses look to defend themselves against claims under the Protect Duty?
Documentation will be key to defensibility, evidencing your risk assessment processes, training and security measures and showing clearly how these all meet the guidance. It will also be vital to document the rationale around your risk assessment and the mitigations you put in place as a result of this thinking.
If the answer is yes to the following questions and you can evidence your response, it may be less likely your organisation could be found to have breached the duty or be liable for damages:
Anti-terror police may be able to provide support in helping retailers meet their new duties, but if you have carried out a terror threat assessment and find risks you cannot immediately manage, talk to your risk advisor or insurer. They are likely to have insight on either reducing, mitigating or transferring the terror risks you face, and better managing the potential damage and retaining or restoring control of your retail operations.
How should retailers assess their terror crisis management plans?
It’s likely retailers will need to adapt their crisis management plans to meet the new Protect Duty and create plans if you don’t have any. Your crisis management plan should have a clear flow from your strategy to the tactics you implement on the ground, and be clear on the trigger points for the various procedures across all phases of an attack and its impact, also specifying who should lead each stage.
Plans, therefore, should consider protecting life and limiting damage during an attack; restoring control and managing media immediately afterwards; picking up the pieces and getting back to normal in the aftermath.
Effective plans that may boost your defensibility will also cover how communication will be managed, such as limiting inbound communication to a minimum and outbound communications to essential stakeholders, such as the emergency services, the importance of which were lessons learnt from previous terror attacks in the UK.
Does your retail organisation need guidance understanding the impact of the new Protect Duty and how it should be responding? Get in touch.
