Violence at work – Employers’ Legal Obligations

Please note: The information in this section is intended to provide readers with a basic understanding of employers’ duties in relation to violence at work. It is not and doesn’t purport to be the definitive ‘final word’ on the subject.

All employers have a Common Law duty to care

All legal entities (i.e. Organisations) and the people who own and run them have a Common Law ‘duty’ to take reasonable care to avoid actions or omissions which could reasonably be foreseen as being likely to result in or contribute to ‘a wrong’ happening to someone else * (including financial harm as well as physical and psychological harm.)

* “…. persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” decided Lord Atkin in the case of Donoghue v Stevenson 1932.

Employers’ legal obligations under Common Law have been summarised by the HSE as a duty to take reasonable care to:

1. Lay down a safe system of work;

2. Provide safe premises and/or place of work;

3. Provide safe plant and equipment

This has been interpreted as including a duty to protect staff from violent attack, providing competent staff, safe plant and equipment, a safe system of work, and effective instruction, training and supervision of employees. Employers duties in Common Law are not limited to just protecting their own employees, they must take reasonable steps to avoid harm happening to anyone who could be classed as a ‘neighbour’.

Employer obligations in Contract Law

A contract of employment imposes two significant obligations on an employer which exist whether or not they are explicit in the contract and regardless of the organisation or the type of work being undertaken. They are:

1. The employer must provide ‘trust and support’ to the employee in carrying out their role.

2. The employer must provide a workplace in which employees are subjected to minimal exposure to risk (and it is well established that workplace violence should be regarded as a risk in this context.)

Employers are also expected to respond to issues of perceived risk as well as real risk. This duty was illustrated in the case of Keys v Shoe Fayre Ltd [1978] IRLR 476, where the employee, Keys, was required to take money to the bank. She was worried about being mugged as there had been a number of muggings in the area. She refused to go to the bank and was consequently sacked. It was held that the employer had failed in its obligation of trust and support; the employee’s concerns had not been taken seriously, nor had alternative methods of getting the money to the bank been explored. In these circumstances there had been a breach of contract.

An employer’s failure to provide appropriate support might also reach a point where an employee can no longer tolerate the working conditions and decides to leave. This could be construed as constructive dismissal where the situation is treated as if the employee had been dismissed. The individual will usually seek a remedy through an industrial tribunal or a county court for Breach of Contract

Employer Duties – Health & Safety Legislation

Following the death of a social worker in 1986, Lord Skelmersdale said in his report in 1988: “Where violent incidents are foreseeable employers have a duty under Section 2 [of the Health and Safety at Work Act 1974] to identify the nature and the extent of the risk and to devise measures which provide a safe workplace and a safe system of work.”

* Foreseeable: There must be reasonable foreseeability of a risk which a reasonable person would not ignore. The risk must be “real” in the sense that a reasonable person “would not brush [it] aside as far-fetched” (see Lord Reid in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound No 2) [1967] 1 AC 617, 643.)  Note: As the possible adverse consequences increase in seriousness, so will a lesser degree of likelihood of occurrence suffice to satisfy the test of reasonable foreseeability.

Section 2 of the Health & Safety at Work Act 1974 sets out the general duties of employers to their employees. It requires employers to ensure, so far as is reasonable and practicable,** so far as is reasonably practicable, the health and safety and welfare at work of their employees.

** so far as is reasonable and practicable: In the Court of Appeal case: Edwards v National Coal Board (1949) – IKB 704, Lord Justice Asquith said: …. reasonably practicable is a narrower term than physically possible and seems to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures needed to avert the risk – whether in money, time or trouble – is placed in the other.” This interpretation means that the only justification in law for failing to institute measures that are necessary to ensure a safe working environment would be, if the cost of taking the measures was grossly disproportionate to the risk.

Section 2 of the Health & Safety at Work Act also specifies that employers’ duty extends to:

  1. Preparation of a written health and safety policy statement, including the organisation and arrangements for dealing with foreseeable risks.
  2. Provision of a safe working environment
  3. Provision of safe systems of work
  4. Provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of the employees

Section 3 of the Health & Safety at Work Act places a duty on employers to ensure, so far as is reasonably practicable, that people who are not employed by them, but who may be affected by the way they conduct their business, are not exposed to risks to their health or safety. This means that employers are required to control any risks of violence to others e.g. patients, customers, contractors.

A duty to advise, inform and consult with employees

S.2 Health & Safety (Consultation with Employees) Regulations 1996 requires employers to, in good time, inform employees of all the risks to their health from hazards known to affect the workplace – including risk of violence.

Under the Safety Representatives and Safety Committees Regulations 1977 a recognised trade union may appoint safety representatives to represent employees in consultation with employers. Employers are required to ‘in good time’ consult safety representatives over health and safety issues such as training, information and monitoring.

A systematic approach based on Risk Assessment

The Management of Health and Safety at Work Regulations (MHSWR) require employers to conduct a ‘suitable and sufficient assessment’ of every hazard to health associated with or reasonably foreseeable in their workplace – including violence – and to record the significant findings.

Regulation 8 of MHSWR requires employers to, where a likelihood of serious danger exists, devise and implement effective preventive and protective measures, including ‘Emergency Procedures’.

Regulation 5 of MHSWR requires employers to, having regard to the nature of their activities and the size of their undertaking, devise and implement such arrangements as are appropriate for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.

The MHSWR also require employers to ensure that all staff are:

a. Advised in easily comprehensible terms about the risks they face.

b. Suitably qualified and capable of carrying out their particular role in the safety arrangements.

c. Properly supervised.

d. Trained to a standard commensurate with the level of risk being faced.

e. Guided against practice known to be unsafe.

f. Informed of the Emergency Procedures for ‘serious and imminent danger’.

g. Authorised and under no apprehension about stopping work and withdrawing from circumstances which make it unsafe to do otherwise.

h. Prevented from resuming work whilst a “serious and imminent” danger exists.

i. Kept monitored for signs/symptoms that they may be suffering harm e.g. Stress.

In addition, the MHSWR require that management plans include procedures for victims and others to follow immediately after incidents have happened and that provision is made for post incident support (professional counselling and rehabilitation services) for employees who have been victimised, to help minimise the impact of the event.

Risk Assessment

Risk assessment in this context is a process of evaluating the risks presented by workplace hazards. It is a systematic examination of all aspects of work that considers what could cause injury or harm and whether the hazards could be eliminated and, if not, what preventive or protective measures are, or should be, in place to control the risks.

A ‘hazard’ can be anything – whether work materials, equipment, work methods or practices – that has the potential to cause harm. A ‘risk’ is the chance, high or low, that somebody may be harmed by the hazard. The guiding principles to be considered throughout the risk assessment process can be broken down into a series of five steps.

Step 1 – Identifying hazards and those at risk – Looking for those things that have the potential to cause harm and identifying workers who may be exposed to the hazards.

Step 2 – Evaluating and prioritising risks – Estimating the existing risks (their severity, their probability, etc.) and prioritising them in order of importance. It is essential that the work to be done to eliminate or prevent risks is prioritised.

Step 3 – Deciding on preventive action – Identifying the appropriate measures to eliminate or control the risks.

Step 4 – Taking action – Putting in place the preventive and protective measures through a prioritisation plan (most probably all the problems cannot be resolved immediately) and specifying who does what and when, when a task is to be completed and the means allocated to implement the measures.

Step 5 — Monitoring and Reviewing – The assessment should be reviewed at regular intervals to ensure it remains up to date and revised whenever significant changes occur in the organisation or as a result of the findings of an accident or ‘near miss’ investigation.

Risk assessments should not be carried out by the employer or the employer’s representative working in isolation. They should involve employees or their representatives. Workers should be consulted as part of the assessment process itself and given information on any conclusions reached, as well as on the preventive measures to be taken.

General Principles of Prevention

Where an employer implements any preventive and protective measures, they are required to do so on the basis of the principles specified in (Schedule 1) to the MHSWR. This includes considering:

a. avoiding risks, evaluating the risks which cannot be avoided and combating the risks at source;

b. adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health; adapting to technical progress;

c. replacing the dangerous by the non-dangerous or the less dangerous;

d. developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;

e. giving collective protective measures priority over individual protective measures and

f. giving appropriate instructions to employees.

Employers must report serious incidents to the H&S enforcing authority

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) require employers to report any accident resulting in death, major injury, or incapacity for normal work for three days or more, to the enforcing authority (HSE or Local Authority). The purpose of RIDDOR is to ensure that the enforcing authorities are informed about the more serious health and safety problems for the purposes of official investigation and statistics.

The definition of ‘accident’ includes any act of non-consensual physical violence done to a person at work.

When any employee has suffered a major injury or is unable to do their normal work for three days or more and the injury is as a result of an assault, the accident is must be reported to the enforcing authority (HSE or Local Authority).

Note: Only physical injuries which result from acts of non-consensual violence to workers qualify as ‘accidents’ for the purposes of RIDDOR. In other words, for the ‘accident’ to be reportable under RIDDOR, the incapacity must arise from the physical injury and not be the result of a psychological reaction to the act of violence alone. Also, there is no requirement under RIDDOR to report violent incidents that happen to non-workers (i.e. service users and other members of the public). However, the fact that a particular incident is not reportable under RIDDOR 95 does not mean that it is outside the scope of Health & Safety legislation. The employer may still have duties under HSW Act and MHSWR.

For more info on RIDDOR: Click Here

Breach of duty

An employer’s duty to take ‘reasonable steps’ is triggered by “impending harm to health, which must be plain enough for any reasonable employer to realise the need to act”

There is a breach of duty only if the employer has failed to take steps that are reasonable in the particular circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of that harm, the costs and practicality of preventing it and the justifications for running the risk. In all cases, it is necessary to identify the steps that the employer could and should have taken. It is also necessary to show that had the steps been taken, the adverse outcome could have been avoided or the severity of the injury reduced.

Defending against complaints and accusations

The only defence to charges alleging a breach of statutory Health & Safety obligations is for the accused employer to prove that they had exercised due diligence and done “everything reasonable and practicable” to avoid the commission of the offence(s) complained of. Contrary to the norm in legal cases, it is incumbent on the employer to prove that they have fulfilled their legal obligations.

Below are some examples of what the law requires of employers –

Must avoid negligent hiring

An employer has a duty to protect employees and customers from harm/ injuries caused by employees whom the employer knows (or should know) pose a risk to others. An employer may be found to have breached this duty if they have failed to exercise ‘due diligence’ when checking out an applicant’s background, references and personal suitability for the role – especially where such an investigation would have revealed that the applicant had a violent propensity or was otherwise unfit for the job.

Must avoid negligent supervision

Where an employer has been made aware of a risk of violence to an employee and then fails to ensure the employee’s safety, inadequate or negligent supervision could be the basis for a claim of employer’s liability.

For example:

  • Where an employee who has been threatened with violence is not sufficiently supervised and an assault happens.
  • Where an employee who has threatened another employee with violence is not sufficiently supervised and an assault happens.

Must avoid negligent retention

Where an employee known to have violent tendencies is retained in employment, the employer may be more likely to be found liable for any harm the employee then causes to another.

Employers must protect against bullying and harassment

The law expects employers to be “good shepherds” and take an interest in the welfare of their ‘flock’. Management must take notice of any ‘circumstantial evidence’ which may indicate an employee is suffering from bullying or harrassment (e.g. uncharacteristically poor quality work, absenteeism, loss of humour, lacking concentration etc.) and any other relevant information about the individual provided by colleagues.

Reasonable and effective steps to prevent employees suffering bullying and harassment might include 

1. Raising the profile of bullying and harassment and maintaining a high state of awareness amongst the workforce of the dangers.

2. Provision of comprehensive information to all staff on what constitutes bullying / harassment, and why it is considered to be gross misconduct.

3. Issuing Guidance and Procedures to follow in the event of either experiencing bullying or becoming aware of colleagues being victimised.

4. Issuing specific instructions to, without delay, report matters to management.

5. Offering employees a confidential advice service and free professional counselling for victims.

6. Providing management with training in how to recognise the signs of bullying and how to respond positively.

7. Making the employee safer (e.g. frequent and regular monitoring of the employee and the alleged bully).

Employers who fail to take ‘reasonable steps’ to protect against bullying and harassment happening can be found liable to pay damages in compensation.

Section 95 Employment Rights Act 1996 explains the right of employees to access an employment tribunal where they believe they have been “constructively dismissed” – for example, where an organisation has failed to take appropriate action to deal with a complaint of bullying or harassment.

Protective measures might include dismissing an offending employee

Where an employee is guilty of bullying, or violent behaviour, or a group of employees are guilty of harassing a person (whether the victim is an employee or not) serious consideration should be given to immediately dismissing them from their job.

Doing so may be regarded as a ‘reasonable step’ to take to prevent a re-occurrence.

Section 98 Employment Rights Act 1996 addresses the rights of employers to dismiss employees who engage in harassment of fellow employees.

What if an ‘at risk’ employee wants to carry on working?

If, despite awareness of the existence of a risk to health, an employee chooses to continue working in the same job under the same conditions, their employer would not necessarily be in breach of duty to allow them to do so. However, cases will undoubtedly arise when, despite the employee’s desire to remain at work notwithstanding his recognition of the risk he runs, the employer will nevertheless be under a duty in law to dismiss him for his own good so as to protect him against physical danger. This was the decision of the Court of Appeal in the case of Coxall v Goodyear GB Limited [2002] IRLR 742.

So, in some cases employers have a duty to dismiss – in an employee’s own interests – and they may be found liable for any subsequent harm that happens if they don’t.

More Info

A fair and effective discipline and grievance procedure is essential

Providing a fair and effective grievance procedure is now a specific legal requirement. It became mandatory in October 2004 when the Employment Act 2002 (Dispute Resolution) Regulations came into effect. The Regulations establish statutory minimum disciplinary and grievance procedures that all employers and all employees are required to follow in the event of an employment dispute.

Please Note

More info on how courts have interpreted employers’ duty obligations appear in the Case Law Examples section.

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