Violence in the workplace: frequently asked questions

This week Sue Nickson, International Head of Employment at Hammonds, answers some frequently asked questions on the prevention and risk of violence in the workplace.

What steps regarding risk assessments are required?

The Management of Health and Safety at Work Regulations 1999 require that employers carry out an assessment of the risk of harm or injury to workers and members of the public with a view to taking precautionary steps to remove or minimise those risks wherever possible. For many employers the risk of violence or attack in the workplace will be one that must be included in a risk assessment. The same considerations apply to an assessment of the risk from violence as to the assessment of risk from any other source such as machinery or equipment.

The Health and Safety Executive advises that when carrying out a risk assessment employers should:

Where an employer identifies a risk to the health and safety of employees or members of the public it should consider what reasonable steps can be taken to reduce that risk or, if possible, remove it all together.

If there is a violent incident or an attack the employer should review the risk assessment in light of that event and give further consideration to whether any additional preventative steps might be considered reasonable in the circumstances.

Carrying out a risk assessment in itself does not guarantee that an employer has fulfilled its statutory and common law duties of care towards its employees but, if it is carried out correctly and its recommendations implemented, a risk assessment is strong evidence that an employer has taken all reasonable steps to care for the health and safety of its employees whilst at work.

Relevant policies and documents

Hazard identification and risk assessment policy and procedure
Risk assessment form

An employer has a duty to take reasonable care for the health and safety of employees. What might be considered 'reasonable' in terms of preventing harm to employees from violence or attack?

What is considered reasonable will depend upon the particular situation concerned. For example, what is reasonable in terms of protection for an isolated shop with late night opening will be different from what is considered reasonable for a busy shop in a precinct where the shops are open only in the daytime and there is an existing security patrol. As well as practical security measures, employers should also consider the provision of suitable training to staff on such matters as how to deal with incidents and the procedures for seeking assistance.

Where there have already been incidents that show there to be a real risk of attack the employer will have to take steps to review the situation and where possible improve security measures. Failure to do so will put the employer at increased risk of a claim.

In Keys v Shoefayre Ltd [1978] IRLR 476 IT a shoe shop assistant whose employer had taken no security measures was found to have been constructively dismissed following two armed robberies. However, in another case involving two armed robberies, a building society cashier was found not to have been constructively dismissed where her employer had taken reasonable security measures (Dutton & Clark Ltd v Daly [1985] IRLR 363 EAT).

Should an employer have a policy for dealing with workplace violence?

A policy on violence in the workplace is helpful to set out an employer's procedure for dealing with violent incidents, whether as a result of attacks from non-employees or internal fighting amongst staff. As well as setting out the employer's duty to its employees in respect of minimising risk of injury, the policy can also be used to explain the support that will be available to employees following any incident that does take place. The policy should ideally be combined with suitable training for employees on avoiding and dealing with violence or abuse at work. This type of training, together with a policy that provides for a flow of information between employer and employee regarding the identification and reduction of risks, will be of assistance to an employer in establishing that it has fulfilled its duty of care towards its employees. As always, however, simply having a policy in place will not be sufficient and the courts will look to what has happened in practice.

Employers should also make it clear to employees that violence amongst the workforce will not be tolerated and will be viewed as gross misconduct.

Relevant policies and documents

Violence at work policy and procedure

Must employers pay the compensation awarded by the Criminal Injuries Compensation Authority where employees are injured by crime in the course of their employment?

The Government issued a consultation paper on proposals about compensation and support for victims of crime on 12 January 2004. Amongst the issues for consultation was the question as to whether employers should be made to pay the compensation awarded by the Criminal Injuries Compensation Authority (CICA) to employees injured in the course of their duties. A summary of the responses to the consultation was issued in July 2004.

There was strong opposition to the proposal that employers should be responsible for compensation as suggested. The reasons given included the fact that many sectors of industry already pay a high price in dealing with crime and most incidents cannot reasonably be anticipated. In any event, existing legal provisions already deal with employers who are negligent or in breach of their statutory duties as regards health and safety at work. The impact on insurance costs was also relevant.

Following the consultation exercise the Government has now confirmed that it does not intend to proceed with legislation to make employers responsible for compensation awarded through the CICA and that instead it will continue to 'build on the existing effective practice and to continue to work with employers' organisations and trade unions to ensure that everything possible is done to encourage safe working practices and to help people return to work as soon as possible when they are injured'.

What is an ASBO?

An ASBO is an antisocial behaviour order that can be made against a person who has acted 'in a manner that caused or was likely to cause harassment, alarm or distress'. A total of 2455 ASBOs were issued in England and Wales between 1 April 1999 and 31 March 2004.

ASBOs have been used to break up gangs of youths who have caused persistent problems in and around shopping centres and there has been a push from trade unions to promote the use of the orders as part of a wider attempt to protect workers, particularly those in retail.

Next week's article will answer frequently asked questions on the aftermath of an attack and internal violence.

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