AWARE

Keoghs Insight

Author

Emma Mitchell

Employee liability and violence at work

AWARE05/11/2018
At Your Leisure Autumn 2018

There is an ever increasing number of employees on the front line of customer interface who are not expected to deal with violent or aggressive situations but are unfortunately finding themselves involved in such scenarios.

The majority of these cases revolve around criminal assaults from members of the public on staff in stores, typically made in an attempt to obtain money or goods.

The following case covers an employee’s training to undertake dynamic on the spot risk assessments, and the need to take reasonable care of their own safety by avoiding placing themselves in dangerous situations. This example can lend itself to a range of workplaces, from shops and bars to car parks and clubs.

The Claim

The claimant in question sued his employer for damages after he was assaulted by a member of the public when confronting a gang of youths congregating on the employer’s place of business.

An intercom personal protection device was available to the claimant and he had also been trained on how to carry out a dynamic risk assessment and avoid confrontation. He was accompanied by another member of staff, however, they took the decision to split up, and it was following this that the assault occurred.

The claimant suggested CCTV would have prevented this incident and that there was generally an unsafe system of work, as members of staff (including the claimant) were being asked to undertake tasks beyond their training i.e. they were required to confront potentially aggressive members of the public.

The Defence

The defendant’s position was that the claimant had been trained to assess risks and was not required to confront members of the public or act as aquasi-security guard. His role was to investigate, assess and, if appropriate, deal with situations in the remit of a customer service operative. At all times, if dangerous situations arose, staff were not required to confront any person.

The Judgment

The judge held that the claimant could have assessed the situation as he ascended the ramp onto the floor where the youths had congregated, however, he instead chose to proceed. The claimant had been provided with sufficient training and equipment, and the provision of CCTV would not have been reasonable in the circumstances. The claimant was found to have failed to assess a situation which common sense would inform him was confrontational and took a relatively antagonistic approach.

Such an approach was not in line with the appropriate training he had received or his job role, which did not include becoming a quasi-security guard.

The judge did not find an unsafe system of work. He considered that there was an appropriate and reasonable health and safety training plan in place, a safe system of work and an approach to the public which was well spelt out and reasonable.

Lesson

Whilst dynamic risk assessments and relevant training should be applied wherever possible for employees in public-facing roles, it is important to remember that the independent failure of a claimant to comply with training cannot result in negligence on the defendant’s behalf.

For more information please contact Emma Mitchell.