The increase in violence against healthcare and emergency service workers19/11/19
The year on year increases in assaults by service users and members of the public on staff working in healthcare and the emergency services are a significant concern for both workers and employers. Violence against police officers is well documented and has been a problem for some time now, but there has been press coverage recently of statistics which reveal that violence against those working in healthcare organisations, fire and rescue services and ambulance trusts is on the rise and there is a recognition that more needs to be done to protect workers.
The Health and Safety Executive (HSE) defines violence at work as any incident in which an employee is abused, threatened or assaulted in circumstances related to their work, which will include physical and verbal abuse. Employers will be aware that under the Health and Safety at Work Act 1974, organisations have a legal duty to ensure the health, safety and welfare of employees and in this article we look at points to consider in seeking to comply with this duty whilst also protecting organisations. We focus here on violence by service users and members of the public and not by employees.
Duty of care
Together with an employer’s obligations in respect of health and safety which are enforced by the HSE, employers have a general common law duty of care in respect of their employees which they may fall short of if they do not properly assess the risk of violence to staff. A breach of the duty of care where the harm to an employee was reasonably foreseeable by the employer may lead to claims for compensation by an employee including circumstances where an employee suffers personal injury as a result of violence at work.
The Management of Health and Safety at Work Regulations 1999 provide that employers are obliged to consider the risks posed to the health and safety of employees. This will include the risk of violence and it is, therefore, essential that organisations accurately record reports of violence at work. Many organisations are raising awareness of the importance of accurate reporting and providing training to staff on what constitutes violence, highlighting that they should report all acts of violence. In certain roles, there appears to be an underreporting of violence with staff taking the view that it is ‘part of the job’. We are aware that some mental health trusts, for example, have a particular issue with nursing staff who view violence by service users as part of the role. Employers, of course, have a legal duty under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 to report certain injuries but in order to accurately assess the scale of the problem in an organisation, it is vital that employers look to change this mind set.
It is only once employers are satisfied that violence and assaults are being consistently reported that an analysis can take place to check for patterns and identify the most significant risk areas to focus efforts.
Security measures and training
In response to the increase in assaults against staff, some organisations have taken the step of introducing body worn video (BWV) and/or self-defence classes for staff.
Training for staff will form an important part of violence prevention, for example, how to identify potentially violent individuals through body language, how to anticipate increases in aggression and techniques to diffuse a potentially violent situation. Some organisations have gone one step further and provided self-defence and restraint training for their staff. We recommend that as part of any such training, information is provided to staff about their personal liability where they use force which goes beyond what is reasonable in the circumstances. In addition, employers should also consider the risk that they may be vicariously liable for the acts of their employees in defending themselves (see below).
The use of BWV is gaining in popularity with two fire and rescue services and an ambulance trust recently announcing that they would be introducing this measure in the wake of increased attacks. Its use by police officers is widespread and concerns have been raised by the public and police officers about recording and the right to privacy. Consideration needs to be given to when, how, where and why BWV is deployed. However, provided the cameras are used proportionately, particularly in sensitive situations, do not record continuously, and it is made clear to the public when the camera is in operation, our view is that employers can use them in a way which is compatible with data protection and human rights legislation. The use of BWV should be set out in a policy. We recommend that employers carry out a data protection (privacy) impact assessment when considering the use of BWV and ensure that thought is given to the security, storage and retention of footage in order to ensure compliance with data protection legislation. BWV are not a total solution to providing evidence in respect of an incident and as well as any video evidence, accompanying written eye-witness evidence should be taken as soon as possible. Consideration should be given to whether any such statement should be prepared before the staff member has watched the footage, detailing his/her perception of the risk at hand and their decision making process, or with the benefit of the footage, and this should be addressed in any policy.
In the discussions we have had with organisations, it is clear that there is a great deal of variation in the follow up care which is provided to staff who suffer violence at work. In order to support staff well-being and prevent periods of sickness absence which may result from violence at work, we recommend that employers put in place organisation-wide frameworks which may involve a series of meetings to support employees, considering the mental impact on employees who have suffered physical violence at work and any stress which may result and counselling services.
Employers should bear in mind that they have a duty to consult with employees on matters relating to their health and safety and it is important that those who are considering developing a framework to support staff regarding violence at work, consult in ‘good time’.
Vicarious liability and the acts of third parties
Vicarious liability (i.e. where an employer is liable for the acts of its employees carried out in the course of employment) is a concept with which many employers will be familiar, for example, employers may be vicariously liable when an employee harasses another employee on the basis of the Equality Act 2010 or the Protection of Harassment Act 1997. Vicarious liability raises two issues in the context of violence by service users and members of the public:
First, where an employee takes action to defend him/herself when threatened with violence but is deemed to have used more force than was reasonably necessary. Case law has established that whilst an act of violence by an employee may be a gross abuse of his/her position, whether the acts were carried out in the course of employment (and, therefore, whether the employer will be vicariously liable) will depend on whether there is a close connection between the actions of the employee and the employment. There is certainly a risk that an unbroken sequence of events in relation to violence by a service user and excessive force used by an employee in defending him/herself could give rise to vicarious liability for employers and we recommend that the limits of self-defence form part of any training around violence at work.
Second, liability for harassment of employees by third parties. At one time, there were provisions within the Equality Act 2010 which applied when an employer knew that an employee had been harassed by a third party on at least two previous occasions and had not taken reasonably practicable steps to prevent the harassment so as to make the employer liable for the harassment. However, these provisions were repealed by the Government. There was a period of uncertainty about the extent of an employer’s liability in relation to harassment by third parties until the Court of Appeal case last year of Unite the Union v Naillard which confirmed that, generally, an employer will not be liable for the harassment of an employee by a third party unless a failure to act by an employer is motivated by discrimination, which will be unusual.
Employers should be aware that the Equality and Human Rights Commission has recommended that third party harassment be reinstated and there is considerable support for this recommendation, including in the run up to the General Election. However, even without a legal basis for a claim against an employer, from a staff wellbeing perspective, employers should take steps to prevent harassment of staff by services users and members of the public. Again, there is an education piece here regarding raising awareness amongst employees that this is not ‘part of the job’ but to come forward and report such incidents.
In 2018 the Assaults on Emergency Workers (Offences) Act came into force, doubling the maximum sentence from 6 to 12 months in prison for someone convicted of assaulting an emergency worker. The definition of emergency worker includes a person employed or engaged to provide NHS health services and services in the support of the provision of NHS health services, and whose general activities involve face to face interaction with service users and the public. In October 2018, the Department of Health and Social Care also announced that there would be a new NHS violence prevention strategy. Despite this new legislation and the announcement, the number of assaults continues to rise and dealing with violence against public servants is an issue which is becoming increasingly important for organisations which want to protect their staff, are dealing with prolonged sickness absence as a result of physical and verbal assaults and which are trying to improve staff retention. Culture change is a priority for many organisations and we suggest that training and education on how to deal with violence at work should form part of the culture change piece around creating a supportive workplace and improving staff well-being.
If you would like further information about any of the issues raised in this briefing note, please contact Nicky Green, Paul McFarlane or Andy Uttley.