Violence

Findings from the 2013-14 Crime Survey for England and Wales (CSEW) show that an estimated 257,000 adult workers experienced work-related violence including threats and physical assault and that there were an estimated 583,000 incidents of violence at work, comprising 269,000 assaults and 314,000 threats. Forty-four percent knew the offenders and the figures show that the police and health workers face the greatest risk.

The employer’s duty of care under the Health and Safety at Work etc Act 1974 includes preventing violence at work. The HSE says that risk assessments should include violence wherever it is a significant risk.

Under RIDDOR (see Chapter 10), employers must report any incidents at work if they result in death, a specified injury or incapacity for normal work for seven or more days. This includes incidents where injury is caused by physical violence. In 2013-14 there were 4,936 RIDDOR reports of injuries to employees involving acts of violence in Great Britain (including a death, 866 major or specified injuries, and 4,069 over-seven-day injuries). Emergency workers have some legal protection from assault. The Emergency Workers (Scotland) Act 2005 made it a specific offence to assault, obstruct or hinder someone providing an emergency service or someone assisting an emergency worker in an emergency situation. In 2008, the law was extended to include protection for GPs, nurses and midwives working in the community.

The Emergency Workers (Obstruction) Act 2006 applies to England, Wales and Northern Ireland. Under the Act, it is an offence to “obstruct or hinder” emergency workers responding to “blue light” situations. The Act defines emergency workers as firefighters, ambulance workers and those transporting blood, organs or equipment on behalf of the NHS, coastguards and lifeboat crews. (The police already have their own obstruction offence in the Police Act 1996). The maximum penalty for an offence is £5,000.

Employer criminal liability

Employers can face criminal prosecutions over workplace violence. For example, in November 2014, the convenience store company Martin McColls Ltd was fined £150,000 and ordered to pay £78,000 for six breaches of the Health and Safety at Work etc Act 1974 for failing to protect its employees from the risk of violence. The sentence was imposed at Liverpool Crown Court following a lengthy investigation by Wirral Council environmental health officers into six violent robberies at four branches of McColls in Wirral in 2011 and 2012.

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.

The claim was taken against her 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. 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. Public services union UNISON supported her case and she later settled a claim for compensation out of court.

Two 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.

In Vaickuviene v J Sainsbury plc [2013] IRLR 792, a Lithuanian national working stacking shelves at a supermarket was murdered at work by a colleague who was a member of the British National Party. He had previously made frequent racist comments and was aggressive. The claim failed on the basis that there was not a sufficiently close connection between the perpetrator’s actions and the work he was employed to carry out: “In the course of employment” does not have the same meaning as “at work”.

The Court of Appeal case of Mohamud v W M Morrison Supermarkets plc [2014] IRLR 386, looked at whether the supermarket was vicariously liable for an assault committed by an employee. It set out a two-stage test for determining vicarious liability:

• is the relationship between the primary wrongdoer (employee) and the person alleged to be liable (employer) capable of giving rise to vicarious liability;

• is there a sufficiently close connection between the wrongdoing and the employment to make it fair and just to hold the employer vicariously liable?

In this case, the second test was not met. The Court of Appeal said that: “The mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient.” There must be some further factor or feature, such as “the granting of authority, the furtherance of an employer’s aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring.”

Cuts to the Criminal Injuries Compensation Scheme (CICS)

In November 2012, changes to the Criminal Injuries Compensation Scheme (CICS) came into effect in England, Wales and Scotland. The changes reduced or withdrew compensation payments to many people injured in violent crimes, including those injured as a result of work-related attacks. The scheme previously awarded compensation to between 30,000 and 40,000 people a year who were seriously injured in a crime of violence but could not obtain recompense from any other source, such as their assailant. Those who suffer minor injuries no longer get compensation under the changes.

The TUC says the changes removed around 17,000 victims of violent crime every year from the scheme, including those with injuries, like a smashed hand or an injury to the knee, serious enough to require surgery. Thousands of workers who were injured because of criminal acts at work, such as shopworkers or security guards who were assaulted, are no longer compensated through the scheme.

Dangerous dogs legislation

The Control of Dogs (Scotland) Act 2010 gave Scottish local authorities the power to serve dog control orders, or “dog ASBOs”, and holds owners fully and legally accountable for the actions of their dogs even in their own homes. Similar laws apply in Northern Ireland and some twenty organisations campaigned for new laws to cover England and Wales.

Following the Langley inquiry into dog attacks on postal workers, in May 2014 the Dangerous Dogs Act 1991 was extended to private property, meaning people such as postal workers and telecom engineers now have protection under the law. The Dangerous Dogs Act 1991 now also includes new powers for police and local authorities to help them to act early and stop dog attacks before they happen. It will also introduce compulsory microchipping (from April 2016) to improve responsible dog ownership and help identify owners of dogs which attack people and animals.

The communications union CWU has been campaigning for many years for better protection of workers from dangerous dogs. CWU national health and safety officer, Dave Joyce, who spearheaded the union’s seven-year Bite Back campaign, welcomed the news: “These changes will help to keep thousands of postal workers safer and irresponsible dog owners will be held to account and face far harsher punishments for offences. These new rules mean these owners will be held accountable and face a substantial increase in sentencing penalties. Compulsory microchipping will also help bring about more responsible dog ownership.”

Combating violence against retail workers

Retail union Usdaw’s annual survey of abuse, threats and violence against shopworkers, conducted as part of its ongoing Freedom from Fear campaign, revealed that on average 241 shopworkers are assaulted every day. The survey also reveals that 33% of shopworkers were threatened by customers and over half were verbally abused in the 12 months to November 2014. The union continues to campaign for a change in the law to make assaults on workers serving the public a separate offence to common assault.

The HSE has published an online toolkit to help cut the risk of work-related violence towards shop workers. The guidance tells employers: “Wherever possible, make sure you have at least adequate staffing levels for surveillance and to meet customer demands.” Employers are also told they should “consult the union’s health and safety representatives”. The guidance adds: “Representatives will consult members, which can help you work together to identify issues and create strategies to reduce risks of violence.”

In practice, the downgrading of retail premises as “low risk” workplaces and the removal of the threat of proactive unannounced inspection by an external regulator (see Enforcement — Chapter 2) means that such premises are likely to become less safe and levels of threats of violence and intimidation towards retail workers are likely to continue to increase.