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Violence

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.