Violence in the workplace: the legal issues
This week Sue Nickson, International Head of Employment at Hammonds, begins a series of articles on violence in the workplace with a general overview of the legal issues involved.
In a world that can appear increasingly violent, some individuals will unfortunately find themselves on the receiving end of unprovoked attacks simply as a result of carrying out their work. For retail workers in particular, the risk of violence and/or verbal threats and abuse in the workplace is all too real. Not only is violence a risk for employees, but it also leads to staffing problems including absenteeism and associated costs such as compensation payments and even increased insurance premiums.
The Health and Safety Executive states that those who are more at risk from violence at work include those engaged in:
giving a service;
caring;
education;
cash transactions;
delivery/collection;
controlling; and
representing authority.
Employers must be aware of their duty of care towards employees who are on the front line in shops, restaurants and other public facing roles.
All employers are under a duty to take reasonable care and reasonable steps to ensure the safety of their employees at work. The common law duty of care is comprised of a number of elements including the duty to provide a safe place of work, a safe system of work, adequate equipment and materials and competent fellow employees, and the duty to protect employees from unnecessary risk of injury.
Failure to take reasonable care to prevent reasonably foreseeable risks to employees will amount to a breach of an employer's duties, resulting in it being liable in negligence. An employer will be negligent if it does not take reasonable steps to eliminate a risk that it knows or ought to know is a real risk (and not merely a possibility).
Contract
Every contract of employment contains implied duties of care on the part of the employer to take reasonable steps to protect the health and safety of workers and to maintain trust and confidence between the parties. This means that an employer must not act in any way that is likely to destroy or seriously damage the relations of trust and confidence.
Statutory provisions
Health and Safety at Work Act 1974
The Health and Safety at Work Act 1974, section 2 places a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. A breach of the Act itself may impose a criminal liability on the employer. The Health and Safety at Work Act 1974, section 7 also places a duty on employees to cooperate with their employer to enable compliance with statutory obligations, as well as placing a personal duty on each employee to take reasonable care for his or her health and safety and that of other persons who may be affected by his or her acts or omissions at work.
Management of Health and Safety at Work Regulations 1999
The Management of Health and Safety at Work Regulations 1999 place the employer under a duty to carry out an assessment of the risks to employees in the workplace (see below ).
Reasonable steps
Employers are not under an absolute duty to ensure the health and safety of workers. If an employee is assaulted at work this does not automatically mean that his or her employer has breached its duty. An employer's general duty is to take reasonable steps to ensure health and safety.
What amounts to reasonable steps will depend on a number of factors including:
whether the employer knew or ought to have known that there was a real risk;
the degree of risk involved; and
the likelihood of the event happening.
The Management of Health and Safety at Work Regulations 1999 require employers to carry out an assessment of the risks to employees and to make arrangements for health and safety through effective planning, organisation, control, monitoring and review. Where appropriate the risks covered should include the risk of exposure to reasonably foreseeable violence. This will mean a consideration of the environment and design of the particular job as well as the level of training and information provided. The Health and Safety Executive (HSE) suggests that, in conjunction with risk assessments, employers may consider:
providing employees with any information that they may need to identify clients with a history of violence or to anticipate factors that may make violence more likely;
providing better seating, decor and lighting in public waiting rooms and more regular information to customers about, for example, delays;
physical security measures such as video cameras/alarm systems; coded security locks on doors to keep the public out of staff areas; and wider counters and raised floors on the staff side of counters to give staff more protection.
Further general guidance on carrying out risk assessments can be found on the HSE website. Specific advice about dealing with the risk of violence in the workplace is also available from the HSE. This includes its booklet Violence at Work: a guide for employers (PDF format).
Consultation with staff
The Health and Safety at Work Act 1974 also requires that employers consult with health and safety representatives with a view to promoting and developing measures to ensure the health and safety of employees, and in checking the effectiveness of those measures. More detailed obligations are set out in the Safety Representatives and Safety Committees Regulations 1977 and the Health and Safety (Consultation with Employees) Regulations 1996. The employee representatives must be either appointed by recognised trade unions or elected by employees. Under the Health and Safety (Consultation with Employees) Regulations 1996, where there are no trade union appointed safety representatives, employers may either consult with employees directly or through elected representatives.
Internal violence
Violence or abuse from other employees should be treated just as seriously as any risk of injury from members of the public. Arguably an employer is more in control of an individual's fellow workers than members of the public, and there is a risk that vicarious liability will rest with an employer for acts of violence by one employee against another.
It will not be enough for the employer simply to forbid employees to fight with each other: the issue is whether an act complained of was sufficiently connected with the employment for it to be held as a matter of law that the employer should be vicariously liable. That said, employers should make it clear in their company disciplinary procedure and staff handbook that violence, threats of violence and aggressive behaviour are unacceptable and will lead to disciplinary proceedings.
It will not always be fair for an employer to dismiss an employee for fighting at work. Each case will depend on its own facts. Employers should investigate matters fully and be aware of the potential for provocation, as well as any other background factors that should be taken into account such as medical or domestic issues that may increase the propensity for violence to occur.
Steps that employees can take if they feel at risk
Health and safety complaints
If an employee feels at risk he or she can make a complaint to his or her employer about this as a health and safety issue. Failure by the employer to investigate such complaints promptly and reasonably could amount to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal.
Employees who make complaints about health and safety at work have the right not to be victimised or dismissed for doing so.
Refusal to work
Employees should report incidents to their employer where they feel that the circumstances are such that their health and safety is being put at risk. Once on notice, the employer is duty bound to take reasonable steps to reduce the risk.
If an employee feels that inadequate security provisions or a failure to deal with a specific risk such as a nuisance customer places him or her in serious and imminent danger that he or she cannot reasonably avert, the Employment Rights Act 1996 provides that the employee may refuse to work in those circumstances. An employee who leaves or proposes to leave his or her place of work in such circumstances has automatic unfair dismissal and victimisation protection (Employment Rights Act 1996, sections 44 and 100).
Employees may also feel unable to work as a result of an imminent threat from a fellow worker. In Harvest Press Ltd v McCaffrey [1999] IRLR 778 EAT a night-shift worker was automatically unfairly dismissed when he walked out of work because he was frightened by the abusive behaviour of his co-worker.
When risk becomes reality
Self-defence and vicarious liability
Employees who are faced with violent situations have the normal right to self-defence, which provides that it is lawful for individuals to threaten to use or to use a reasonable amount of force to protect themselves from attack from another person. However, use of an unreasonable amount of force may lead to a criminal conviction for assault and/or battery as well as potential liability for compensation in the civil courts.
If a member of the public were to be injured by, for example, a shop worker during an incident there is also a possibility that the employer would be held vicariously liable for the acts of its employee.
An employer will be vicariously liable for the acts of an employee where the act complained of is carried out by the employee in the course of his or her employment. The main issue is whether the act was sufficiently connected to the employment for it to be appropriate as a matter of law for the employer to be held vicariously liable. This applies to acts carried out against colleagues and members of the public.
In the rather extreme case of Mattis v Pollock (t/a Flamingo's Nightclub) [2003] IRLR 603 CA the Court of Appeal held that a nightclub doorman was acting in the course of his employment when he stabbed a customer outside the club where he was employed. This was despite the fact that he had first been home to get a knife in order to carry out the attack. The court found that the employer had encouraged the doorman to carry out his security duties in an aggressive and intimidatory manner, which meant that the incident could not be treated in isolation. As a result, the employer was vicariously liable for the actions of the employee as they were carried out in accordance with how the employer had expected or even authorised him to fulfil his duties. Although an extreme case, this does provide a clear indication that any employer that encourages violence in any employment situation will risk being held liable for the consequences.
Training should be provided to staff on how to deal with abusive or violent customers and how to avoid such incidents arising in the first place. Employers should remember that any security staff are also subject to the same reasonable force requirement in terms of self-defence and that any injury sustained as a result of their intervention in a situation may also be actionable both as a crime and as a civil tort.
Caring for staff in the aftermath of an attack
Following an incident in the workplace an employer should consider assisting affected employees by providing access to a workplace counselling scheme where one is available, or by simply taking time to listen to any employee who wishes to talk over his or her ordeal. The employer must, however, maintain absolute confidentiality in respect of these matters.
Employees may need time off work to recover from both the physical and the mental effects of an incident and, while most employers are likely to allow this time off, it may be that in certain cases this will actually be necessary to maintain trust and confidence under the contract of employment.
Employers should be aware that violence or threats of violence and abuse at work can be very intimidating and can lead to stress. Workplace stress loses businesses millions of pounds every year and dealing with these issues properly will help avoid long-term sickness absence and potential claims for compensation.
In some more severe cases, following an incident at work, an employee may become disabled under the Disability Discrimination Act 1995. In such cases the employer would need to consider such steps as providing time off and counselling in order to comply with the duty to make reasonable adjustments under the Disability Discrimination Act 1995, section 4A.
The duty to report incidents
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 require employers to notify their enforcing authority in the event of an accident at work resulting in death, major injury or incapacity from work for more than three days. This includes any act of violence against a person at work. Employers must also keep an accident book and record specified details of events in it. This is also a helpful tool when carrying out risk assessments as it provides the employer with a summary of the type of events that have occurred, allowing it to take steps to prevent recurrence.
Other issues
Prosecution
Intentional harassment is a criminal offence under the Public Order Act 1986, section 4A.
The Protection from Harassment Act 1997 creates an offence where a person has been subjected to threats of violence or other forms of harassment where it amounts to a 'course of conduct'. To fulfil this test, the harassment must have happened at least twice. In these cases the criminal courts have a power to order the defendant to pay compensation to the victim, although in most circumstances it will be unlikely that the defendant will be in the financial position to make such a payment.
Damages, injunctions and orders
An employee who has suffered a civil wrong may sue the offender for damages under common law or by virtue of specific legislation such as the Protection from Harassment Act 1997.
The courts also have the power to grant injunctions to prevent harassment continuing or, at an employer's request, to prevent trespass on to private property. In certain circumstances an employer may consider that seeking an injunction would be among the reasonable steps that should be taken to care for the health and safety of its employees.
The Crime and Disorder Act 1998 provides magistrate's courts with the power to make antisocial behaviour orders against persons who act in 'a manner that caused or was likely to cause harassment, alarm or distress'. These orders are for a minimum of two years and breach can lead to imprisonment.
Criminal Injuries Compensation Authority
The Criminal Injuries Compensation Authority awards compensation to victims of violence. Where appropriate, compensation may include sums for loss of earnings and special expenses. Compensation is based on a fixed tariff dependent on the injuries sustained.
Next week's article will answer frequently asked questions on prevention and risk with regard to 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
