When going to work really is a pain
Henrietta Phillips explains the law in relation to assaults at work.
The 2008/09 British Crime Survey estimated that in the previous year there had been 305,000 threats of violence and 321,000 physical assaults to workers in the UK. These included ambulance workers, hospital workers, care workers and teachers assaulted by members of the public as well as patients, service users and pupils.
In addition some employees were assaulted by their colleagues.
The injuries – physical and psychological – sustained in such assaults can be significant and where the injuries affect the victim’s capacity for work there can also be significant financial losses.
A claim for compensation for those injuries and losses against the individual who caused the injury is likely to be fraught with difficulties, not least because the individual will not have insurance to cover such a claim and the chances of compensation actually being paid are often slim.
An alternative will sometimes be a claim against the employer (who will have insurance to cover claims) but such claims have their own difficulties.
If a colleague deliberately assaults another in the course of their employment, then the employer is likely to be vicariously liable for the consequences of the assault. However, claims against employers for an assault by a third party (such as by a pupil on a teacher) are much more difficult to pursue successfully as the employer will not automatically be responsible for the consequences of the third party’s actions.
The law says that employers have a duty to take reasonable steps to provide a safe place and system of work and to supervise and maintain it. They also have duties to carry out, act on and update risk assessments under the Management of Health and Safety at Work Regulations 1999, and strict duties under the Workplace (Health, Safety and Welfare) Regulations 1992, Provision and Use of Work Equipment Regulations 1998 and the Personal Protective Equipment at Work Regulations 1992, among others.
But the regulations can be of limited relevance in assault claims where the incident involves a third party rather than defective equipment.
There are risks in certain types of work, such as caring for people in psychiatric wards or teaching children with special needs, which are not always foreseeable or preventable.
In 2002 the Judge in the case of King -v- Sussex Ambulance Trust stated: “Such public servants accept the risks which are inherent in the work, but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care to avoid”. In the same year the Court of Appeal stated in the case of Cook -v- Bradford Community NHS Trust that “a health authority who has the difficult task of looking after these patients should not expose their employees, however well trained, to needless risks”.
The difficulty in these cases is persuading courts to accept that the risk the victim was exposed to was more than a reasonable part of the job and crossed the line so as to become, as described in the case of Cook, “needless” risk. It is often necessary to show that:
- There was a previous history of violence by the third party that the employer was aware of. This can seem unfair to victims in that, if they are the first to be assaulted, theirs is often a weak claim. A history of violence can be difficult to prove and information can be difficult to obtain. Where there is no history of violence, it may be enough to prove that the employer was, or should have been, aware of the specific risk but this is much more difficult to prove.
- That the employer has not carried out an adequate risk assessment. Often the employer will have carried out some form of risk assessment so the victim must be able to prove that it was not adequate. This can be difficult.
- That the employer has not implemented the risk assessment. However, even where this can be proved (such as in a failure to provide the minimum number of staff recommended by a risk assessment or a failure to provide a panic alarm) the victim must still prove that this failure was a material cause of the incident – which again can be difficult.
Claims are also difficult to investigate, not least because relevant personal documents for the third party (including education records, care plans and specific risk assessments) are subject to the Data Protection Act and cannot be easily obtained in the way that incident reports and risk assessments can be in other accident at work cases.
Ultimately it is often the case that a victim’s only prospect of obtaining compensation is from the government funded Criminal Injuries Compensation Authority (CICA). Thompsons acted in the case of a UNISON member assaulted at a care home where she looked after elderly male residents who had difficult backgrounds, including alcoholism and sexual offences.
She was attacked in 2002 by a resident with no previous history of violence. She suffered bruising and swelling to her legs and shoulder and also psychological trauma. She was unable to return to work and was eventually medically retired.
Because the attack could not have been foreseen, it was not possible to pursue a compensation claim against the local authority that ran the care home. Instead, a claim was submitted to the CICA. Its initial low offer was eventually increased this year after the CICA appeal panel accepted evidence that the member would have been promoted to a managerial role had the attack not happened.
Nevertheless, compensation awarded under the CICA scheme is often lower than that in the civil courts and applicants often experience significant delay in the processing of their claims.