Employer criminal liability

Employers can face criminal prosecutions over workplace violence. For example, in February 2010, a charity providing support and housing services to people who suffer from mental health problems was fined £30,000 with costs of £20,000 after a young support worker was attacked and killed by a service user. Mental Health Matters Ltd pleaded guilty to a charge brought by the HSE for a breach of the Health and Safety at Work etc Act 1974 for failing to do all that was reasonably practicable to ensure Ashleigh Ewing’s safety. She died after being stabbed by a client during a visit to his home. He later pleaded guilty to manslaughter on grounds of diminished responsibility.

The charity had failed to respond to a number of warning signs and failed to afford Ewing the level of protection that the nature of her job warranted. The HSE said that although the case was unusual, it showed the need for employers to assess risks to employees who visit individuals in their homes and for arrangements to be reviewed when changes occur.

And in July 2012 the Court of Appeal ruled that a social worker, who was stabbed by a psychiatric patient for whose child she was responsible, had the right to sue two health authorities responsible for her attacker’s care. Claire Selwood was stabbed six times by Graham Burton after he confronted her during a professional conference at his child’s school in County Durham. Just two days earlier he had told medical staff at Cherry Knowle Hospital, Sunderland that he would kill her on the spot if he saw her — the last of a number of threats that were not acted upon. Selwood suffered life-threatening injuries and was profoundly traumatised by the ordeal.

Public services union UNISON is supporting her case and says that if it is ultimately successful, it could result in every NHS Trust and local authority being required to check that threats against the personal safety of social workers and other vulnerable lone workers are made known to all parties, taken seriously and acted on.

Following the attack, UNISON began a claim for compensation against Ms Selwood’s employer, Durham County Council, the Tees Esk and Wear Valley NHS Trust and Northumberland Tyne and Wear NHS Foundation Trust. The case against the two NHS Trusts was initially dismissed by Newcastle County Court on the grounds that they did not owe Ms Selwood a duty of care, but she was given leave to appeal.

On 18 July 2012 the Court of Appeal accepted it was arguable that the two NHS Trusts did owe her a duty of care based on their responsibilities under an agreed protocol and Ms Selwood can now continue the claim against her employer and the Trusts. Her assailant, Graham Burton, was jailed indefinitely in June 2007 for the attempted murder of Ms Selwood. An independent inquiry found a “complete failure” by medical staff to warn her of any danger.

If the case is ultimately successful, UNISON says that it would reinforce the need for every NHS Trust and other relevant authorities to fulfil their obligations under the “working together” protocol.

Two recent co-joined cases, Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25 CA, looked at whether assaults on managers by other employees occurred within the course of employment and whether the employer was “vicariously liable” for these.

In Weddall, a care home manager phoned a member of staff to ask if he would work an extra night shift to replace an employee who had called in sick. The employee concerned was very drunk and thought that the manager was mocking him. He went to the care home and violently assaulted the manager. In Wallbank, a manager reprimanded an employee who responded to the reprimand by violently assaulting him. The Court of Appeal said that where an employee inflicts violence on another employee or third party, the vicarious liability of the employer depends on the closeness of the violent act to the employee’s employment.

In the first case, it concluded that the employee was not acting in the course of his employment and that the employer was not vicariously liable for his violent act. In the second, it decided that the assault was in response to a lawful instruction and done in the course of his employment. It held that the employer should therefore bear vicarious liability.