Protecting employees from violence
By failing to protect employees from violence, aggression and abuse from the public (or fellow employees), an employer may be in breach of a number of obligations.
The most recent British Crime Survey estimated that, every year, there are 1.3m physical assaults or threats by members of the public against employees at work. Employees are experiencing a rise in the number of these incidents as well as an increase in their severity. A recent Home Office report indicates that workers in the security/protective services are by far the highest risk group, followed by nurses and care workers. Typically the risk is higher for those who work alone or away from the office; in contact with people under the influence of alcohol or drugs or people with behavioural problems.
Employers' liabilities
An employer is under a general duty of care to provide a safe place and system of work for all employees. The duty of care is to take such steps as are reasonable to ensure that the employee remains safe from reasonably foreseen dangers. What steps are considered reasonable depends on the degree of risk and the nature and size of the organisation.
Health and safety at work regulations require employers to carry out a ‘suitable and sufficient’ assessment of risk to which employees are exposed whilst at work. This assessment should identify any measures that an employer needs to take in order to comply with statutory health and safety regulations. Failure to foresee a potential danger, and/or carry out a proper risk assessment, is likely to be in breach of the duty of care in failing to give proper consideration to the potential risk faced by their employees.
Employers must also keep written records of and notify the authorities concerning violent incidents in the workplace. This applies when someone has died, suffered an injury (that is classed as major or results in more than three days' incapacity) or where a member of the public is injured and taken to hospital.
Employees' rights
An employee may resign and claim unfair constructive dismissal if the duty [of care] is fundamentally breached, for example, by not providing any protective measures in a high crime area. The employer must also investigate ‘promptly and sensibly’ an employee's complaints over health and safety issues.
An employee who reasonably believes that there is a ‘serious and imminent’ danger has the right to take steps to protect him/herself and others. They may even leave work if they are unable to avert the danger, and refuse to return whilst the danger persists.
If an employee is dismissed for complaining about unsafe working conditions, for taking protective measures or for refusing to work whilst the danger persists (that danger can come from fellow employees as well as members of the public or the workplace itself), the dismissal will be automatically unfair and there is no cap on the level of compensation that may be awarded.
An employee also has the right not to suffer detriment short of dismissal (e.g. demotion, loss of pay, disciplinary action) for any of the above reasons.
Anti-discrimination legislation places a duty on employers to protect their employees, where reasonably possible, from being harassed by their fellow employees or anyone else with whom they have to deal. This duty applies to harassment, including physical violence, perpetrated on the grounds of sex, race, disability or gender. Where the harasser is not an employee, the employer is only liable if he could have prevented the act. However, even if the harassment is shown to have occurred in the course of employment, the employer will escape liability if it can be shown that they have taken ‘reasonable steps’ to prevent incidents occurring. Such steps may include implementation and enforcement of an equal opportunities policy, training courses, disciplinary sanctions etc.
Sometimes however violence cannot be avoided and self-defence is required. The law allows reasonable force to be used in defending oneself (i.e. it must not be out of proportion to the attack) and there is no need to wait for the attack – a reasonable belief that action is necessary to prevent harm (to yourself and others) should provide the necessary legal basis. But, under law, an employer may be liable for the actions of their employees if the amount of force used is unreasonable and in the course of employment. There is also the question of whether a perpetrator of violence could be held until the police arrive. This would technically be a citizen’s arrest and the standard advice is not to attempt it unless you have been trained in the specific issues involved.
Legal remedies
Employers may prosecute offenders, seek damages or an injunction or invoke the Protection From Harassment Act 1997 (see related links box). They could also apply for an anti-social behaviour order (ASBO) and seek compensation through the Criminal Injuries Compensation Authority (see related links box).
As stated, the employer's duty of care applies to other employees as well as outsiders, but the employer has greater liability for the actions of an employee, as distinct from a member of the public, in respect of assaults generally, and racial, sexual and disability-related abuse in particular.
Conclusion
The duty to provide a safe place of work is clear justification for employers to treat cases of assault and intimidation very seriously indeed. Providing that procedures are adhered to, and in the absence of mitigating circumstances, dismissal for assaulting a fellow member of staff is likely to be fair. Fighting between employees is viewed equally seriously, and is generally viewed as gross misconduct (this would be made clear in the staff handbook), which can lead to dismissal in the absence of mitigating circumstances (such as stress or illness).
Update
The Public Accounts Committee has said that the Department of Health must do more to end violence against its staff, and that hospital trusts were failing to collect enough information about attacks on their staff. Incidents of violence and aggression were seen as high and rising, with more than 95,000 reported incidents in 2001/2002.
Over the longer term this leads to issues of stress, sickness absence, lower morale and impaired productivity, as well as recruitment and retention problems. The committee concluded that, while there has been progress in encouraging reporting, there remains a significant level of under-reporting. Many NHS trusts are not using the standard definition set out by the department, and the information being collected does not differentiate between the types and severity of incidents.
These factors limit the department's understanding of the problem, and make it difficult to say how far the increase reflects an actual increase in incidents or to measure how well trusts individually and overall are performing, added the MPs. They called for the next phase of the department's zero tolerance campaign to set out the reporting requirements which trusts should apply.
The National Audit Office report
The National Audit Office, in a recent study that follows up a 1996 report, states that the NHS is still struggling to improve the health and safety of its staff despite numerous high profile health and safety initiatives in the past five years. The study concludes that, while improvements are being made in managing risks, progress overall is patchy, and the gap between the best and worst performing trusts is widening.
Initiatives have included a national healthy workplace campaign, guidance to improve understanding of the legal framework and encourage best practice, and targeting back pain and violence.
Unfortunately, the target of a 20% reduction in accidents and ill health was met by only 23% of respondents, while 64% reported an increase. Overall, the number of incidents rose by 24% between 2000/01 and 2001/02, and violence and aggressive incidents rose by 13%. In each trust surveyed, the rate of accidents per 1,000 staff increased, with ambulance trusts consistently recording the highest accident rates.
NHS sickness absence rates are also well above average (4.9% compared to 3.7% in the rest of the public sector) and, combined with the above, the report estimates the direct cost of staff accidents to be over £173m pa.
Some trusts have seen decreases due to good working practices and improved risk management, whilst others have seen a rise due to better reporting procedures and awareness. One in five cited staff shortages and increased workload as a factor behind the increases, others highlighted improved reporting, increased bed numbers and poor working practices. Factors identified as reducing incidents include clearer policies and procedures, staff training, employment of specialists and improvements in equipment.
Most trusts now comply with DH guidance for managing health and safety risks, for example:
-
Almost all trusts have appointed a board member with specific responsibility for health and safety, 71% discuss health and safety at board level at least six-monthly, but 12% never discuss it at board level
-
Almost all trusts have a separate health and safety committee with staff representation that meets six-monthly
-
80% of trust chief executives have reviewed their health and safety arrangements in the past year
-
98% of trusts have a written policy on general health and safety management and the other 2% are drafting one, although surveys show that many staff are unaware of these policies
-
90% have a risk assessment policy and 95% have appointed a competent person to lead on health and safety matters.
The report notes the progress but points out, given the inconsistencies revealed by its investigation, that uniform health and safety induction programmes and refresher training could help alleviate the problem, although workloads and staff shortages are seen as barriers to staff attending training, with doctors the least likely to attend. Trusts are urged to address this.
The report also found that all trusts now offer staff occupational health services, but again provision varies in quality and accessibility with approx 75% of trusts identifying resource constraints as the problem. Provision varies between a single part time nurse to a dedicated team of doctors, nurses and support staff. 82% of trusts have in- house staff, whilst only 30% mental health trusts and 17% of ambulance trusts do so.
All trust occupational health departments say they provide access to counselling services and the DH recommends that trusts review their practices to ensure they are pro-active and cover such issues as stress and rehabilitation.
The report also establishes that only 31% of trusts are proactive in ensuring contractors' safety and it urges the DH to remind trusts of their responsibilities to all staff on their sites and to review their systems in this regard.
In 1996 the absence of robust reporting systems was criticised. Today all trusts claim to have improved their procedures, encourage staff to report incidents and provide training. However, under-reporting remains significant, and there is a discrepancy between what trusts believe to be reportable. The report therefore calls for a consistent approach to recording and measures to tackle under reporting that draw on best practise. A clear unambiguous reporting structure throughout the NHS is the aim.
Finally, the report recommends:
-
That the DoH should consider the development of a national health and safety strategy to coordinate existing and new initiatives
-
That all trusts should review their policies to reflect the views of staff
-
That all trusts examine the extent to which clinical and non clinical risk assessments could be integrated
The head of the NAO states that although more needs to be done to reduce accidents, some good progress has been made despite widespread variations in provision. He also states that counselling and support help staff to get back to work more quickly, and this may assist in recruitment and retention. He adds “the NHS must show that the health and safety of its staff is a top priority.”
We agree with him: health and safety is paramount for RCM members. We note that the report implies that more can be done to raise health and safety standards in the workplace.
Failure to carry out a risk assessment for a pregnant woman constitutes discrimination
There has been a recent employment tribunal case involving a care assistant whose job involved lifting elderly residents. She became pregnant, and discussed the need for a risk assessment with her employer. She then claimed her right to suspension on maternity grounds under the Employment Rights Act 1996* (ERA) and produced a medical certificate indicating she should refrain from heavy lifting. No risk assessment was carried out, her employer offered her a cleaning job, which she refused and she subsequently left her job.
She took her case to an employment tribunal claiming sex discrimination, a failure to offer suitable alternative employment, and failure to carry out a risk assessment.
The tribunal upheld her complaint under the ERA, as there had been no risk assessment under the Management of Health and Safety at Work Regulations 1999, but it dismissed her sex discrimination complaint, since she had suffered no detriment under the Sex Discrimination Act (SDA) 1975, as she was not treated less favourably than a man or non-pregnant woman.
She appealed against the decision, and the EAT, citing previous legislation, held that the failure to carry out a risk assessment could constitute a detriment for the purposes of the SDA, as it is implicit that lifting work posed a potential risk to pregnant women or unborn children. There was no requirement therefore to use a man or non-pregnant woman as a comparator, as pregnancy itself is a relevant circumstance.
This case extends the special protection accorded to pregnant women to a failure to comply with health and safety legislation. By this decision, a failure to carry out a risk assessment in respect of a pregnant woman will not only amount to a breach of the 1999 regulations and of the ERA, but will also automatically be sex discriminatory without the need for a comparison to be made.
*The ERA states “where an employer has available suitable alternative work for an employee, the employee has the right to be offered the alternative work before being suspended from work on maternity grounds.”
Pregnant workers
The HSE has published new guidance for employers on how to protect the health and safety of workers who are new or expectant mothers (i.e. those who are pregnant, who have given birth in the last six months, or who are breastfeeding). Employers must carry out a risk assessment if any of their workers is a new or expectant mother, and the HSE’s new guidance highlights the types of work that such workers should avoid, including:
Manual handling of heavy loads
Work at unsuitable workstations
Work that may expose the woman to stressful or potentially violent situations
Work in confined spaces
Work involving exposure to lead
Where the work creates a health and safety risk for new or expectant mothers, the HSE is encouraging employers to change the working conditions or offer alternative work rather than sign them off sick. By law, employers must suspend a pregnant worker on full pay if there is no reasonably practical way of protecting her or her baby’s health and safety at work.
Tribunal says pregnant women have the right to full probation
Employers who are about to dismiss probationary employees while they are on maternity leave have to extend the probation instead, according to a legal ruling.
Many employers require new employees to serve a period of probation before being offered permanent employment. The Employment Appeal Tribunal (EAT) warns that they should ensure that pregnant employees get a fair chance to serve all of their probationary period.
The ruling comes as the result of a case taken against a company that had taken on an employee who was pregnant at the time of her appointment. She was told, like all others, that she would be on six months' probation. She worked three months and then began her maternity leave. At the end of the six months, and while she was still on maternity leave, she was sent a letter terminating her contract on the basis of an unsatisfactory probation.
The only service taken into account was the three months before the start of her maternity leave. In effect, because she was pregnant, she did not have the same chance to demonstrate her range of skills as would anyone else completing the six-month probationary period.
The EAT says that employers who do this are breaking sex discrimination law. It has ruled that, if the alternative would be dismissal,employers must extend the probationary period of workers on maternity leave.
Entonox
Entonox, referred to colloquially as gas and air, is an anaesthetic used to ease pain during childbirth and in other situations when other anaesthetics would not be appropriate. It is a mixture of fifty percent nitrous oxide (N2O or laughing gas) and fifty percent air. It is administered by having the patient inhale it. It is very fast-acting, typically taking effect between twenty seconds to one minute after inhalation.
It should be stored away from sources of heat or flame, and should under no circumstances come into contact with oil or grease as this can form a mixture with a room-temperature combustion point. Similarly, no-one should smoke in the vicinity of an Entonox cylinder which is in use.
Undesirable effects
The nitrous oxide constituent of Entonox causes inactivation of vitamin B12 which is a co-factor of methionine synthase. Folate metabolism is consequently interfered with and DNA synthesis is impaired following prolonged nitrous oxide administration. These disturbances result in megaloblastic bone marrow changes.
Exceptionally heavy occupational exposure and addiction have resulted in myeloneuropathy and subacute combined degeneration. Theoretically similar adverse results could occur from heavy and prolonged Entonox exposure.
All these effects are well documented, extremely rare and may follow prolonged exposure to levels of nitrous oxide over 5000ppm or to frequent (more than once every two days) exposure to analgesic concentrations. It has been suggested that prolonged occupational exposure to high levels of nitrous oxide may affect a woman's ability to become pregnant, may result in bowel distension, middle ear damage and rupture of ear drums. Addiction to Entonox has been reported.
Occupational exposure standard (OES)
There is no OES for medical oxygen in the U.K. The OES for medical nitrous oxide is proposed as follows: Long-term exposure limit (8 hour TWA reference period) -100 ppm (ref. HSE EH40).
Entonox may in some circumstances affect the health and safety of midwives at work, please see RCM guidance notes on how it can be used and stored.
