Adding insult to injury
With the frequency of assaults on staff growing, the onus is on employers to protect their employees
Serious assaults on staff (such as nurses, paramedics, bus and train drivers) are on the increase. Employers who try to evade their duties and put the onus on staff will receive short shrift from the courts, as the case of Smith -v- Welsh Ambulance Service NHS Trust shows.
Mr Smith’s union, UNISON, instructed Thompsons to act on his behalf.
Mr Smith, a highly regarded paramedic with 20 years’ experience, was called to an incident on 30 June 2001 involving an unconscious drug addict in a derelict building in a deprived area. He was working on his own and asked for the police to be called.
He arrived first and went to the patient, but was then accosted and threatened by two other drug addicts in the building. By the time a second ambulance arrived, he was very distressed and was subsequently diagnosed with severe post traumatic stress disorder.
Mr Smith argued that he should have been ordered to “stand-off” until the police arrived and that someone should have undertaken a proper assessment of the risks. His employers, however, said that, as the paramedic attending, only he could know whether to proceed or not.
Mr Smith claimed that his employers had been negligent and / or were in breach of contract.
Evidence for Mr Smith
At the time of the incident, the only relevant policy documentation available to staff was a basic training manual, described by the judge as “sparse”. There was no policy document on lone workers.
Since the incident, however, the Trust had issued a “raft” of documentation dealing with the management of conflict, how to reduce risk, how to conduct a risk assessment and one on lone workers.
This stated that it was the job of control and operational staff to decide whether to send a lone worker into “potentially hazardous situations”. One of the incidents listed as unsuitable for lone workers to attend was overdoses.
A number of witnesses attested to these changes following the incident. For instance, a paramedic recently called to a similar incident was told not to go in alone. He pointed out that: “What is dangerous has not changed but now you have the right to question whether you should go in…..you did not in 2000…you were expected to go. It was not questioned."
Evidence for the employer
The Trust argued that there were no known risks in sending Mr Smith into the area (one manager went so far as to describe it as being “within a holiday area”), and that it was for Mr Smith to decide whether or not to wait for the police or go in himself.
It argued that its only duty was to provide Mr Smith with all the known information, but no duty to decide whether he attended the incident or not. That duty, it argued, was delegated entirely to the paramedic because they were the ones on the spot and the only ones who could make the assessment.
As for the new written policies, they said these were simply a case of “recording in writing what was being done orally already”.
Decision of the court
The Judge accepted that members of the emergency services will sometimes be put at risk and that the final decision whether to “go in” must lie with them, but the duty is on the trust “to ensure that a paramedic is not placed in such a situation unless it is necessary and unavoidable”.
He said it was essential for control staff to perform a risk assessment of the situation, and “make an intelligent decision “ about whether it was appropriate to send a lone worker.
In this case, the controllers should have advised Mr Smith not to do anything until the police arrived. He surmised that: “Had the control staff known they had a discretion to do this and had they been given guidance on how to exercise their discretion, it is my view that they would very probably have done this.”
He concluded that: “In not allowing the control staff this discretion, and in not providing them with guidance on how to use it, the trust both purported to delegate a non-delegable duty and failed in their duty of care to the claimant.”
He said that there was no contributory negligence on Mr Smith’s part because he felt he had little alternative but to go in. He had been placed in an impossible position as he had not been given adequate training as to whether he had a choice about going in or not, nor how to exercise it.
This case illustrates the very real dangers that many employees face when asked by their employers to work alone. It is crucial therefore that employers undertake detailed risk assessments before sending employees into potentially hazardous working areas. These should highlight the risks to the employee's health, safety and general well being.
If a risk is identified, the employer must take adequate steps to reduce the risk to the lowest possible level. In many cases this will mean ensuring that two or three employees work together. In the case of staff working in hospitals, benefit offices and other areas where they encounter members of the public, this may mean employing security guards and implementing other safety measures.
Working people are increasingly at risk from being subjected to violent assaults when going about their work. This is an issue of great concern to trade unions and their members and will be covered in more detail in the next edition of PILR.