The government has recently published proposals to reform the Criminal Injuries Compensation Scheme. One idea is that victims attacked during the course of their employment should be compensated by their employers, rather than by the state.
Under current rules the scheme compensates all victims of violent crime according to the severity of the injuries they sustain. The victim is also entitled to recover loss of earnings up to 500,000.
Many victims of violent crime awarded compensation under the scheme are injured during the course of their employment. They include public sector employees such as police officers, prison officers and hospital workers, and employees in the private sector, such as bank staff and security guards.
The government consultation paper asserts that the scheme, in its current form, could be seen to act as a disincentive for employers to make the workplace safe and do everything reasonably possible to protect employees.
The proposals suggest that where an employee suffers injury as a consequence of violent crime at work, whether or not reasonable steps have been taken to prevent attacks or protect staff, the employer will be required to compensate the employee.
They further state: “There is an argument for saying that employers are best placed to protect employees and minimise the risk to them – and should, through their insurance or otherwise, bear the risk and cost of compensating them for injuries if they fail to do so.”
Under such proposals every employer would be required to act as an insurer for staff who are attacked during the course of their employment, whether or not they have taken reasonable care.
The ramifications of a change of this magnitude cannot be overstated. Currently, employers have a common law duty to take reasonable care towards their employees and are subject to a raft of health and safety regulations de-signed to protect employees in the workplace. Despite complying with common law and statutory duties, an employer would still be liable to compensate an employee who was the subject of an unforeseeable act of violence committed by a third party.
For example, a small courier company sends its driver to deliver parcels. If the driver is hijacked and robbed and during the attack is seriously injured to the extent that he cannot work again, a claim would currently be met by the scheme and capped at 500,000.
The employer would only be liable if it could be established it had failed to take reasonable care or had failed to comply with a statutory duty such as the Management of Health and Safety at Work Regulations 1999.
But under the new proposals the employer would be required to compensate that driver, even though it had complied with those duties, and would face a crippling bill if uninsured.
In the public sector the costs would be met from existing budgets unless new money was made available. In the private sector the costs would be met by either the employer or by its insurers. Small employers in particular would be hit hard.
At present many small employers find the costs of employer liability insurance inordinately expensive. This proposal would add to the cost and possibly amount to another tax on business.
It is, in effect, transferring a liability previously met by the state – and contributed to by all taxpayers – to the individual business. A failure to obtain such insurance (assuming it is not required to be compulsory) could, in the event of a violent attack on a staff member, potentially cripple a business.
Jeffrey Jupp is a barrister in the commercial and employment group at Severn Bedford Row Chambers
Employers have until 1 March to make their views known: www.cjsonline.gov.uk
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