It is clear that Black Friday has firmly embedded itself in the UK psyche in recent years. Although traditionally associated with the US holiday of Thanksgiving, taking place on the day after, in the past few years many UK major department stores, supermarkets and large high street names have begun holding Black Friday sales. In 2018 Black Friday falls on 23 November 2018 and from the beginning of this week on-line discounts have been available for some stores. Many stores however, reserve their sales, or the best discounts for Friday itself and many have in-store exclusives. 

The risk of these Black Friday in-store sales is the huge crowds they can attract and the increased risk of injury from crowding, crushing, trampling and items falling on customers and staff. In November 2008, a Walmart employee in New York was killed when a crowd of shoppers broke down the doors to begin shopping at the store. Although the UK has not had any Black Friday related deaths, there have been injuries to customers and staff alike reported in the national press including in 2014 where the BBC reported on a woman whose wrist was broken in a crushing injury at a Tesco store in Greater Manchester. 

What duty do employers owe to their staff when holding Black Friday sales?

Employers owe their employees a duty of care whilst at work and this covers accidents at work. It is known as employer's liability. The law places a legal obligation on employers to provide their employees with a safe place to work. This relates to the safety of equipment employees are required to use, the state of the premises, training they are given, supervision and implementing health and safety regulations. Arguably inviting crowds of shoppers onto their premises could be a failure to provide a safe work environment. Even more so if there are deals of a limited nature which would entice shoppers to run, push and fight for goods.

Another factor to take into consideration is training; envisage the night time shop worker who is used to dealing with a near empty shop, who on Black Friday is faced with handling a rowdy crowd. Employers should take care to protect their employees, risk assess the effects of large promotional sales and ensure staff are trained to deal with such situations.  

What duty do store owners owe to shoppers when holding Black Friday sales? 

A store owner's duty to Black Friday shoppers is governed by the Occupier's Liability Act 1957 as well as a common law duty of care. In essence the owner of the premises is under a duty to take steps to ensure lawful visitors are safe in using the premises for the purpose for which they are invited or permitted to be there. In the case of Black Friday sales this would be for the purpose of walking around the shop, browsing and purchasing items.

If there are large, uncontrolled crowds, enticed to be there by major discounts and promotions it is arguable that the premises would not be safe and this lack of safety is a direct result of the promotion being offered by the store. The activity of taking part in the sales is being encouraged and therefore store owners need to risk assess to ensure that shoppers are safe when participating in the sale. 

Is there a defence?

If a claim for injury is brought against a store owner, where a shopper has been legitimately participating in Black Friday sales, then a store owner may attempt to argue "contributory negligence" or "voluntary assumption of risk".

Contributory negligence is a partial defence that seeks to limit liability on the basis that at least part of the responsibility of the accident sits with the claimant. If successful this will lead to a claimant receiving only a percentage of the value of their claim. Whether contributory negligence applies will depend on the exact nature of any accident, however, merely participating in a shopping activity is unlikely to be sufficient to establish contributory negligence on the part of the claimant. To be successful the store owner will need to show some level of "wrong-doing" on the part of the claimant. 

A voluntary assumption of risk is a principle that says that a claim cannot be made where a claimant has consented to an inherent risk that then materialises. If successful, a voluntary assumption of risk provides a full defence to a claim. However, it is not enough for the defendant to prove that the claimant knew about a risk, there must be some form of express or implied consent given by the claimant and they must be aware of the nature and extent of the risk. So whilst it might be accepted that a shopper in Black Friday sales consented to some light shoving and pushing, it is unlikely that a court would accept that a claimant consented to the risk of a flat screen television falling on their head.

Regarding an employee, it is even more unlikely that this principle would apply as they will have little choice over their presence and duties in the store. An employee would have to be acting outside the remit of their employment for voluntary assumption of risk to apply. 

In summary, employers / store owners need to be concerned about their legal obligations to their employees and visitors when it comes to Black Friday sales and the increased risk caused by crowds. If they fail to comply with the duties placed upon them they could find themselves subject to compensation claims and Black Friday not being as lucrative as they had hoped.