Assault in the workplace
Casualty Aware 2
The last edition of Liability AWARE examined the potential vicarious liability faced by employers in relation to assaults - either verbal or physical - committed by employees acting in situations which the courts considered (somewhat tenuously on occasions) to be in the course of their employment.
This article deals with the flip side of the coin – assaults by third parties on employees in the course of their employment. Unfortunately this is a far from uncommon occurrence. There are typically in excess of 500,000 incidents annually; with these figures considered to represent significant under reporting. USDAW, the shop workers union, has reported that on average at least one shopworker in Britain is attacked every hour of every working day.
Notwithstanding the quirky nature of these claims, the key, as with dealing any case, is to go back to basics.
The courts often see foreseeability as a key issue. Documentary and lay witness evidence will be needed dealing with any previous similar incidents. In McGinnes v Endeva Service Ltd (2006) a TV repair engineer lost a claim when he was stabbed and slashed whilst working alone in Glasgow. He claimed that the call out to a ‘known dangerous area’ in Easterhouse should have been a two man job. The court held that there was no evidence to show the employer had any history of attacks on service personnel in Easterhouse or in any part of Glasgow.
In Humphrey v Tote Bookmakers (2003) the claimant suffered Post Traumatic Stress Disorder (PTSD) following an armed robbery at the betting shop where he worked. He alleged the defendant had breached its duty of care by not having a second employee on the premises when the claimant was opening the shop and for not training staff to deal with robberies. The court held there was no general need for betting shops to be staffed before opening by at least two members of staff. In light of its security and lack of previous robberies there were no particular features of this shop which made that necessary.
The claimant had not identified what training would have been appropriate and the defendant had taken reasonable precautions in the circumstances.
These cases should be contrasted with Collins v First Quench Retailing Ltd (2003). An off-licence manager succeeded in her claim following an armed robbery when she was working alone. Some form of attack on staff was foreseeable given the shop’s history. The employer’s failure to take reasonable care and introduce double staffing had materially increased the risk of attack.
Assessment of the risk factors for violence is important both in determining whether there is a foreseeable risk which needs to be managed and the steps needed to manage any risk. A risk assessment determining no foreseeable risk of assault will be important in any defence. Risk assessment factors will typically include;
- The type of work staff are involved in and/or the potential for interaction with the public
- The potential for those people to be under the influence of alcohol and/or drugs
- Whether the work involves the handling of money or other valuables
- The location and layout of the premises and its opening hours
- Previous history of assaults
- The number and skill mix of staff employed
- The need for security measures such as CCTV, and physical barriers between staff and customers such as security screens and alarm systems
- The visibility inside the shop from the outside
The risks faced by staff working in a small rural store are likely to be significantly different to those faced by staff working in an inner-city off-licence or security staff transporting money.
Conducting the risk assessment is, in itself not enough. Findings need to be acted on and their contents communicated to staff. A risk assessment which is not acted upon can be a damning document when trying to defend a claim serving to highlight foreseeable risks.
As with any investigation, evidence is needed to show that any security measures are reasonable. Do door locks, security screens and other physical barriers meet relevant British Standards? Are relevant staffing levels maintained? Were any specific systems of work designed to minimise the risk followed?
There needs to be evidence of staff training in safe working practices including advising staff against ‘having a go’ when faced with a potential assailant.
Not every assault will arise from theft or attempted theft. Customer dissatisfaction can escalate to violence. Employers need to be able to demonstrate that staff who have to deal with the public in sensitive or potentially volatile situations have been provided with appropriate people management skills.
As well as acting as a potential deterrent and a means of identifying assailants, CCTV footage is evidence of what actually happened. It is important that the evidence is preserved. Witness evidence is important although given the potentially traumatic nature of events it needs to be handled with sensitivity. Investigating police officers may be able to provide useful evidence. Expert evidence from a security expert may assist in determining whether sufficient steps have been taken to reduce the risk.
This is something of a ‘niche’ area. Take care when selecting your expert and ensure that they can demonstrate the necessary expertise. Clarify whether there is also a Criminal Injuries Compensation Authority (CICA) claim. Any damages recovered in such a claim can be taken into account when assessing civil damages.
Psychiatric injury is often a component of this type of claim and selecting the right medical expert and accessing the claimant’s records is vital to ensure that medical causation is properly addressed.