Article - Employment Law

Tackling Violence in the Workplace

By failing to protect employees from violent or abusive members of the public or colleagues an employer could be in breach of duty to provide a safe place of work.

Health & Safety

The Health & Safety at Work Act 1974 (‘the Act’) imposes a duty on an employer to provide a safe place of work for its employees.  This means, amongst other things, that an employer has a duty to take reasonable precautions to protect employees from reasonably foreseeable dangers including abuse or violence at work.  A breach of this duty could result in an injured employee claiming damages from the employer.  What would or would not amount to a foreseeable risk is a question of fact in each case. 

The duty under the Act is to take reasonable steps, which, in practice, will differ from case to case depending on the level of risk to which the employee is exposed.  Provided that an employer has assessed the risk, and has implemented adequate precautions to reduce or eliminate it, then the potential for injured employees to claim damages is reduced.  Indeed, it is a requirement under the Management of Health & Safety Work Regulations 1999 to carry out suitable and sufficient assessments and ignorance of the law is no defence.

Constructive Dismissal

The duty to provide a safe place of work is also a term which is implied into the contract of employment.  Breach of this term can entitle the affected employee to resign and claim constructive unfair dismissal.  The breach, however, must be a serious one.  An example would be where the employee draws to the employer’s attention a serious risk of danger, either from a member of the public or from a fellow employee, but the employer fails to promptly and sensibly investigate it.  Once the complaint is investigated, if nothing is done about it, where protective measures could have been taken, then the injured employee may be entitled to treat him or her self as constructively dismissed and claim compensation for loss of earnings and the injury itself.  If an employee informs an employer that they are being bullied by a fellow employee, either physically or verbally, this should be investigated and appropriate action taken which may involve disciplinary action being taken against the offending party.  If the abuse is connected to the individual’s race, colour, religion or belief, sexuality, nationality, sex or disability, then the employee may also have a claim for discrimination and his or her case is strengthened in circumstances where the employer, having known about the abuse, failed to take any action.

An employer should consider putting up a visible sign warning customers that staff have the right to work in an environment which is free from abuse and/or violence and that offenders will be prosecuted.  Employees must also be educated that abusive behaviour and/or physical violence will not be tolerated in the workplace.  Motive is irrelevant, so it does not matter whether the guilty employee was fooling around.  The test is wholly subjective so what one person finds inoffensive another may find offensive. 

Complaints should be taken seriously and acted upon.  If the complaint involves another employee, then provided that the employer has investigated the matter as thoroughly as reasonably practicable, and in the absence of a satisfactory explanation from the offending employee, dismissing the abusive/violent employee may well be fair (subject to following fair disciplinary and dismissal procedures).

Refusal to Work

In addition, in circumstances where an employee reasonably believes that they are in serious and imminent danger which cannot be averted, they have a right to refuse to work.  To dismiss an employee where there is a perceived risk of danger, from another employee or a member of the public, could be an unfair dismissal.  In cases where the employee complains of unsafe working conditions, taking protective measures, or refusing to work in the face of the danger, there is no statutory limit on the amount of compensation for this type of unfair dismissal.

Self Defence

The use of self defence is a thorny issue as the law only allows the use of a reasonable amount of force.  What is or is not reasonable force is open to debate and readers will be all too aware of recent publicised cases involving burglary.  The Home Office has issued guidance explaining what reasonable force might mean in a given situation, but this is not clear and it will be for a Court to decide what is or is not reasonable.   A degree of common sense is required and wherever possible walking away from a situation can often be the safest and most prudent course of action rather than risking a violent confrontation.

Article First Published: 5 May 2005

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