Last reviewed 4 August 2022
Barrister Robert Spicer looks at how the courts have ruled in recent cases of violence in the workplace relating to employers’ duty of care.
Health and safety implications
In the recent case of SH v Care Visions Group Ltd (2021), a Scottish court has given judgment in a matter concerning the health and safety implications of a worker who was assaulted in the workplace.
SH v Care Visions Group Ltd (2021)
The facts, in summary, were that SH, a residential care worker, was assaulted by AB, a 15-year-old resident of a home run by Care Visions. SH was repeatedly punched and kicked and required hospital treatment. AB had a history of violence and aggression and she assaulted SH following a difficult telephone conversation with her mother. AB thought that her mother was telling her that she did not want to live with her when she was 16, and that SH was siding with her mother. AB was later convicted of assault. This was not her first conviction for assaulting a member of staff at the home.
SH and her colleagues had received initial training which included training in CALM techniques, de-escalation and trauma informed care.
SH claimed compensation from Care Visions for injuries which she suffered as a result of the assault. She alleged that two of her colleagues, JM and LR, had failed to prevent AB from approaching her and this was a breach of a duty of care for which Care Visions was liable. She also alleged that there had been a failure to provide a safe place of work and a safe system of work. She criticised her employer’s risk assessments and associated control measures, including policies for managing aggressive behaviour and training.
The Scottish Court decided as follows.
JM and LR, knowing AB’s history of violence, should reasonably have been aware of the risk and prevented her from approaching SH. This failure fell below the standard expected of them and created a breach of duty for which the employer was vicariously liable.
The standard of care applicable in the circumstances was that of a reasonably competent residential worker. The combined failures of both employees fell below that standard. But for those failures, SH would not have been injured.
The failures were so closely connected with the tasks which JM and LR were authorised to carry out, that it could reasonably be said that they were acting in the ordinary course of their employment.
In relation to contributory negligence, it was not proved that SH had fallen below the standard of a reasonable person in her position. She was not contributory negligent.
An earlier case with similar facts is the Crown Court case of Keating v Wirral MBC (2007). The facts, in outline, were that K was employed as a residential child care officer in a respite centre. The centre accommodated children and young persons with severe learning, physical or behavioural difficulties. K was an experienced employee but she had little training in the management of emotionally disturbed children. In June 2002 she was attacked and injured by X, a child. She was told before she started her duty that another worker had been bitten on the face by X that day. K claimed compensation for her injuries from her employer and the claim succeeded. The court made the following points.
The systems within the centre for dealing with children with very challenging behaviour were not satisfactory.
There was no set written procedure for dealing with handover when K came on duty.
K had not been given any analysis as to risk following the biting incident. There should have been a risk assessment. There had been no analysis of behaviour, triggers or effective control in relation to X.
When the injury to K occurred, she was dealing with two children on her own, although each child required supervision by one staff member. If there had been appropriate staffing levels and a proper handover, the incident would not have taken place.
K knew that X was prone to violence. She should have called for help. Contributory negligence was assessed at 25%.
Violence at work
The HSE defines violence at work as “any incident in which a person is abused, threatened or assaulted in circumstances relating to their work”.
The types of work where workers are most at risk include:
work activities involving contact with members of the public, for example hospitals and residential homes
work with people suffering from various mental impairments.
Employers are generally required to carry out risk assessments of all the risks associated with their work undertaking, including exposure to potential or known aggressive and/or violent situations.
Where exposure to aggression and violence is a possibility, employees should be trained to recognise relevant indicators so that preventive actions can be taken before situations become out of control.
After an aggressive or violent event has occurred, it is important that the incident is reported, recorded and properly investigated so that recurrences can be minimised and the extent of any such situations determined. In some cases, additional staff support, for example counselling and/or time away from work may be necessary.