Shielding people, reducing claims
The Protect Duty will impose new legal obligations on businesses and could therefore open the door on a range of potential personal injury and damage claims should businesses not have appropriate security and processes in place.
Our October 2021 webinar assembled an expert panel to explore how leisure and hospitality businesses can effectively manage a terrorism crisis event while reducing the risk of mental trauma to employees and members of the public, and therefore potentially mitigating the chances of later claims.
The Protect Duty means businesses will likely need to have appropriate physical security and well-established systems that:
The obligations are likely to be greater for larger businesses with more than 250 employees. Smaller businesses, such as independent shops and restaurants, will be expected to take proportionate and reasonable measures.
The Protect Duty will apply to outdoor spaces under an organisation’s control.
The Protect Duty will apply to outdoor spaces under an organisation’s control. For some businesses, this could mean the areas directly surrounding their building. For local authorities, the new law could apply to their parks, beaches and high street areas.
The consultation proposes any venue capable of holding gatherings of 100 people or more should fall within the Protect Duty. It is also expected to apply to all large organisations employing 250 people or more, operating at publicly accessible locations.
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Venues and organisations affected could include:
The Health and Safety at Work Act1 already imposes a generalised duty to prevent foreseeable harm. However, the Protect Duty will make this a legal requirement specific to terror threats.
How much this will impact your business depends on what measures you already have in place. For example, if your business has good physical security and a well-established process to assess and manage security risks, it is well-placed to fulfil most of the new requirements without needing to take too much further action.
Much of what’s required may, for example, already exist in your organisations’ fire safety and health and safety procedures. That said, it’s still likely you’ll need to map your existing procedures into a specific plan for protecting the public in the event of a terror attack. This will involve identifying any gaps in that plan and plugging such holes with additional procedures or security measures.
If investigators think your business’ lack of planning or response contributed to injuries or fatalities, or if it is found not to have appropriate security measures in place, then it could be prosecuted under the Protect Duty.
It’s worth bearing in mind businesses will still need to protect their staff under health and safety laws, so will need to balance the needs of both the public and employees in their risk assessments and plans.
If your business breaches the Protect Duty, it could open the door onto 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. While individual claims might be low in value, there could be larger class actions. Media attention could contribute to these claims and also create reputational damage.
Documentation is key. You will need to evidence your risk assessment processes, training and security measures and show clearly how they met the guidance. It's also vital to document the rationale around your risk assessment and the mitigations you put in place as a result of this thinking. If an attack occurs, gather evidence including witness statements immediately afterwards and hold on to it indefinitely as cases can take a long time to be decided.
Documentation is key.
Remember, courts will expect organisations to act on what they should have known at the time of the incident, so carry out regular assessments and make sure your processes are up to date and adhere to the new duty.
Anti-terror police may be able to provide support in helping your organisation meet its new duties, but if you’ve carried out a terror threat assessment and find risks you can’t immediately manage, talk to your insurer. They are likely to have insight on either reducing, mitigating or transferring the terror risks your business faces, better enabling your organisation to manage the potential damage and retain or restore control of their operations.
When it comes to how well-placed your organisation is when it comes to defending claims, these are the key questions to consider:
If the answer to these questions is ‘yes’, and you can back this up with evidence, it may be less likely your organisation could be found to have breached the duty or be liable for damages.
It’s likely businesses will need to adapt their crisis management plans to meet the new Protect Duty, or create one if it doesn’t already exist. Experts suggest a headline action list to help in this process:
People may experience trauma after being impacted by a terror attack. The most likely mental health issues people may experience are post-traumatic stress disorder (PTSD) acute stress disorder (ASD) or other symptoms of anxiety and depression. Symptoms may include re-experiencing the trauma, emotional difficulties and avoiding things associated with the traumatic event.
It’s important to have services available to support to support both staff and patrons.
It’s important to have services available to support to support both staff and patrons. Look at what you already have in place in terms of helplines, counselling services and employee assistance programmes and be clear on how people can access them during and after a terror event.
Remember that not everyone will need professional help to recover from a traumatic event, although if a person wants to seek help then support them in doing so.
Please do not hesitate to contact us to discuss your leisure and hospitality risk management and insurance strategy further and find out how we can help you implement the right approach for your business.
