Violence in the workplace: frequently asked questions part 2

This week Sue Nickson, International Head of Employment at Hammonds, answers some frequently asked questions on the aftermath of a violent attack.

What records does an employer need to keep regarding violent incidents in the workplace?

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 require an employer to notify its enforcing authority in the event of an accident at work that leads to death, major injury or incapacity for normal work for more than three days. This will include injury suffered as a result of violence at work.

In addition it is good practice for employers to keep a record of all incidents involving violence or abuse in the workplace. Employees should be encouraged to report any such incidents involving customers or other workers. Full details of each incident should be recorded, including the date and location of the incident. This information will assist employers in assessing the risk of violence, as well as in spotting patterns of abuse from particular sources. They can then go on to take appropriate steps to reduce the risk. The information that has been collected may also be of assistance in future proceedings should it become necessary to take action against particular offenders.

If an employee cannot face working on the night shift after a violent incident is the employer obliged to change his or her working hours?

The first thing that an employer should do following an incident is to review and, if possible, improve security so as to protect the health and safety of its employees. If an employer failed to take reasonable measures and the incident was to be repeated the employer would be at increased risk of being found in breach of its duty of care. Where an employee feels that the system of work is placing him or her in serious and imminent danger the employee may be within his or her rights to refuse to work in those conditions until the situation is rectified.

If the situation is such that, despite the employer taking reasonable steps to remove or reduce the risk, the employee still feels unable to work on the night shift, the employer should consider the request to move shifts. If this can be accommodated then it will be in the interests of both parties. If the employee is finding that working at night is causing stress and anxiety the employer should look at ways of reducing that, including changing shifts. Failure to do so could mean that the employer is knowingly exposing the employee to the risk of developing a stress-related illness, which could lead to liability for personal injury and/or constructive dismissal.

An employer faced with an employee complaining of anxiety in these circumstances should also consider the possibility that he or she is actually disabled under the definition in the Disability Discrimination Act 1995. Although a vague diagnosis of stress or anxiety alone will not normally constitute a disability under the Act, an employee will be disabled if he or she is suffering from a clinically well-recognised mental condition that has a long-term adverse effect on his or her ability to carry out normal day-to-day activities. The Act places a duty on employers to make reasonable adjustments to prevent a disability from placing an employee at a disadvantage in the workplace. Reasonable adjustments will include considering changing working hours.

Are employees who are subjected to violence at work entitled to paid time off from work to recover?

Often an employee feels that he or she needs some time away from work just to get over an incident. This may be the case even though he or she is not ‘sick’ in the strictest sense. Most employers will allow this time off and in some circumstances it may actually be necessary in order to maintain trust and confidence under the contract of employment.

Employees who are unwell as a result of a violent incident or other abuse at work will be entitled to sick pay during any such absence in accordance with the normal terms of their contract of employment. Employers should be aware that, as well as suffering a physical injury, an employee may suffer from an anxiety- or stress-related illness as a result of his or her experience.

In some more severe cases, an employee may become disabled under the Disability Discrimination Act 1995 as a result of an incident at work. In such cases, it is arguable that the reasonable adjustments that an employer is obliged to consider under section 4A(1) include providing time off work and/or counselling.

If two employees are found to have been fighting at work will the employer have to dismiss them both?

It will not be automatically fair to dismiss an employee for fighting at work. Each case must be considered on its own merits. Any disciplinary action taken must follow a proper investigation of the facts and must be carried out in accordance with the minimum statutory dismissal and disciplinary procedure.

Where two employees have been involved in an incident the employer will need to take account of both versions of events before reaching a conclusion as to its view on the situation. It may be the case that one employee provoked the other to such an extent that the first can be said to have been the cause of the fight, although clearly there is likely to be fault on both sides. Generally an employer will need a very good reason not to treat both employees in exactly the same manner. If one employee is dismissed and the other receives a lesser sanction, the dismissed employee may have an argument for unfair dismissal based on the inconsistency of treatment.

Can an employer dismiss an employee who has been charged with a criminal offence involving violence outside the workplace?

It will not be automatically fair to dismiss an employee who has been involved in or even charged with or convicted of a violent crime outside of work. The ACAS Code of Practice on Disciplinary and Grievance Procedures states that ‘if an employee has been charged with, or convicted of, a criminal offence not related to work, this is not in itself a reason for disciplinary action’. An employer will have to consider whether, on the facts, the charge or conviction makes the employee unsuitable for his or her particular type of work and whether the offence is sufficiently serious to warrant instituting the disciplinary procedure. Each case should be considered on its own facts.

Next week’s article will outline a scenario involving violence in the workplace.

Sue Nickson is International Head of Employment at Hammonds (Sue.Nickson@Hammonds.com)

Further information on Hammonds Solicitors can be accessed at www.hammondsuddardsedge.com