Living dangerously

More than 15 years ago, I acted for a hospital that had dismissed a catering
worker because she had been involved in a fight in the hospital kitchen. The
cause of the fight? A fellow kitchen worker kept opening a window, which the
dismissed employee had repeatedly been closing as it left her in a draught. The
point of the story is that violence at work is not new. It has been around a
long time and can be triggered by what appear to be the most trivial of
incidents. What has changed over the years is the extent to which employers
should be concerned about it.

Incidents of violence against workers are on the rise. Recent research among
TUC safety representatives shows violence is now seen as one of the top five
hazards in the workplace. The 2000 British Crime Survey estimated there
were about 1.3 million incidents of violence at work in England and Wales in
1999, comprising 634,000 physical assaults and 654,000 threats. A recent
survey, by the agency Pertemps, suggested that half of the UK’s office workers
have nearly punched a colleague. The most extreme case in this growing trend is
the murder in Hawaii in 1999 of seven Xerox employees by a colleague who was to
be fired.

Employees are increasingly subject to violent attacks by customers; for some
it is becoming a regular hazard. An emergency nurse assaulted by a drunken
patient; a traffic warden stabbed for giving out a parking ticket; a bus driver
shot in the face with an air gun through his open cab window. The occupations
particularly exposed to danger from the public are transport workers, health
professionals, retail sales people, cashiers, security service workers,
catering workers, teachers and traffic wardens.

Another form of violence said to be increasing is ‘work rage’, which does
not just result in acts of aggression towards colleagues and possibly members
of the public, but can take the form of scratching on desks, writing graffiti
on walls and even planting computer viruses. Whatever form it takes, it is
usually a sign of deeper organisational problems such as stress, overwork, a
bullying culture, racist attitudes or even job insecurity.

The consequences of violence in the workplace are easy to predict in terms
of poor morale, high staff turnover and absenteeism, not to mention legal
claims against the employer. There are five pieces of legislation that impose
obligations on the employer in relation to violence against staff. Employers
have a duty to safeguard employees at work as far as is practicable, carry out
risk assessments and prevent and control risks as necessary.

Recently, a teacher received a settlement of £300,000 in a case where she
claimed she suffered stress as a result of bullying by a headteacher over a
long period of time, but the last straw had been an assault by a pupil, which
caused a nervous breakdown. In another case, a teacher was awarded £190,000
damages after being attacked by a teenage pupil.

Vicarious liability – the net widens

Why should an employer be worried about a fight or violence at work? In most
cases, violent behaviour will be an offence defined as gross misconduct in the
employer’s disciplinary code, entitling the employer to dismiss via the proper
procedures. An employer would be entitled to think that if an employee assaults
a fellow worker or customer, this cannot be an act authorised by the employer.

Until recently, you could have been forgiven for thinking that violence at
work was not something done ‘during the course of employment’ and therefore the
employer could not be responsible or liable for any harm caused to a worker or
customer. But that is now a dangerous assumption, as a result of the House of
Lords decision in Lister v Helsey Hall Limited [2001] IRLR 472.

In this case, the claimants, who were boarders at a school for maladjusted
and vulnerable boys, were victims of repeated sexual abuse by the school
warden. A police investigation led to the school warden being tried and
convicted of a large number of sexual offences against the boys. The claimants
sued the school for damages for personal injury on the basis that the school
was vicariously liable for the acts of the warden. The school argued that the
indecent assaults on the pupils were outside the course of the warden’s
employment – the warden was doing something expressly forbidden by the employer
and serving only his own ends. However, the House of Lords found the school was
liable for the acts of the employee.

In determining whether an employer is vicariously liable, the courts will
concentrate on how close the connection is between the nature of the employment
and the employee’s wrongdoing. In this case, the warden’s duties provided him
with the opportunity to commit indecent assaults on the boys. But that was not
enough to make the school liable. What was important was that the school had
entrusted the warden with its duty to be responsible for the care and welfare
of the boys. The warden had failed to perform that duty, and the employer was
vicariously liable for the failure.

Similarly, an employer could be liable for an act of violence committed by
an employee to pay off a private score. Though you could say this is something
outside the course of employment, if the perpetrator is an employee responsible
for maintaining order in the workplace, then the employer may well be
vicariously liable for their actions.

Certainly, the courts have taken a wide view of what is "in the course
of employment" in relation to racially or sexually motivated violence. In
the case of Jones v Tower Boot Company Limited [1997] IRLR 168, Jones
was subjected to ongoing racial harassment by colleagues. One burnt his arm
with a hot screwdriver, others threw metal bolts at him, his legs were whipped
with a piece of whelt and he was repeatedly called names such as ‘chimp’,
‘monkey’ and ‘baboon’.

The employer’s defence was that these acts were outside the course of
employment. This was rejected by the Court of Appeal, which said the words
"in the course of employment" should be interpreted in the sense in
which they are employed in everyday speech, otherwise the worst cases of racial
and sexual discrimination would fall outside the protection of the legislation.

So, how far could the words "in the course of employment" be
interpreted in terms of discrimination claims? In the case of Sidhu v Aerospace
Composite Technology Ltd
[2002] IRLR 602, the company arranged a family day
out for its employees, their family and friends to a theme park. A fight broke
out between employees after racist comments were directed at Mr Sidhu, a Sikh
employee.

Sidhu complained of race discrimination. In these particular circumstances,
the Court of Appeal said the tribunal had not erred in ruling there was no
vicarious liability under the Race Relations Act 1976, as the events occurred
outside the workplace, in the employee’s free time, and the majority of those
present were family and friends rather than employees. However, the Court of
Appeal did comment that another employment tribunal could have quite properly
reached the conclusion that this incident of racial harassment and violence was
indeed in the course of employment.

Employers should be aware that they might be liable for acts they consider
totally outside their area of responsibility.

Dealing with the problem

The steps employers need to take to satisfy their legal obligations in
relation to violence depend on the nature of their business. The Employment
National Training Organisation has developed National Occupational Standards
for dealing with violence, which can be used to develop policy and practice as a
basis for training and qualifications or for benchmarking purposes.

A risk assessment should be carried out to find out whether you have a
problem, whether action is needed, and if so, what. Other steps may include:

– putting in place control measures, such as changing the physical
environment or the job design to minimise risks

– improving security measures such as video cameras, coded locks or alarm
systems

– cultivating an open and trusting culture

– adopting a code of practice on violent behaviour

– offering counselling and/or an employee assistance line

– providing training in the management of aggression and violence (the type
of training would depend on the circumstances, such as whether the employee is
an office worker or field worker and whether they have direct contact with the
public)

– learning from any incidents and debriefing the victims

– monitoring the measures in place to see if they are effective

If, for instance, the violence is possibly stress-related, the employer will
need to look for factors that may be contributing to stress, establish policies
and procedures for handling these, consider an employee assistance programme or
counselling service and monitor the process put in place.

Employers may find they have to adopt different policies to deal with
violence between colleagues and violence involving members of the public,
because the type of violence and triggers are likely to be different.

The Health & Safety Executive has issued guidance for employers on violence
at work, which includes practical advice on finding out if violence is a
problem for employees and, if so, how to tackle it
(www.hse.gov.uk/pubns/indg69.pdf).

Legislation covering violence at work

– The Health & Safety At Work Act 1974 places a legal duty on all
employers to ensure, so far as is reasonably practicable, the health, safety
and welfare of their employees. This duty would include ensuring their
employees are protected from violence at work

– The Management of Health & Safety At Work Regulations 1999 requires
employers to assess risks to their employees, decide what to do to prevent or
control risks, provide clear management structures to achieve this and monitor
and review their processes. There are also obligations to provide information
and training to employees

– The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations
1995 (Riddor) state that employers must report to their enforcing authorities
cases in which employees have been off work for three days or more following an
accident at work which resulted in death, major injury or incapacity for work.
This includes incidents of violence

– The Safety Representatives and Safety Committees Regulations 1977 and the
Health & Safety (Consultation with Employees) Regulations 1996 require
employers to inform and consult with safety representatives and employees on
safety matters such as violence at work

Case study: Tesco

Tesco experienced an increase in assault, threatening behaviour and verbal
abuse towards staff of around 40 per cent last year. Over three years, the
increase has been 78 per cent.

Violence in stores usually takes place where staff are attempting to stop a
crime, such as theft. Tesco’s participation in efforts to regenerate inner
cities means staff can sometimes work in areas with very high crime rates.

The company carries outs risk assessments before building a new store or
offering any new service. For example, when introducing home shopping, it
identified possible risks and took steps to manage these at an early stage.
Tesco also liaises with police, local planning departments and other retailers
to determine risks in new localities so that stores can be designed
accordingly. All stores are subject to audits for design faults that might
expose staff to violence.

Tesco also provides training to enable staff to deal with incidents, from
basic training through to specialist skills for those managing the problem
directly. Managers are trained in conflict resolution.

The company also works closely with local authorities, the police and local
partnerships to identify problem customers and control the problem through, for
example, the use of anti-social behaviour orders.

Source: HSE conference on tackling work-related violence – putting
policies into practice, December 2002

Elizabeth Adams is a partner at Beachcroft Wansbroughs

Find out more…

on dealing with violence in the workplace at www.hse.gov.uk 

on the National Occupational Standards on violence at www.empnto.co.ukno

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