As an employer, we hope that you will not have to deal with violence in the workplace, this is unfortunately something that does occur. This is particularly a risk in client facing roles. In this guide, our discipline and grievance legal experts share the practical steps you can take to:
- Prevent violence in the workplace;
- Support employees who are exposed to a violent incident; and
- Take appropriate action where an employee has been accused of a violent offence.
Contents:
- What is my duty to staff as an employer and what laws relate to violence in the workplace?
- What practical steps can my business take to prevent workplace violence?
- What should my business do if a violent incident takes place in the workplace?
- What if an employee is arrested for violent conduct outside of work?
- How can you support workers who have been exposed to violence in the workplace?
- Summary
What is my duty to staff as an employer and what laws relate to violence in the workplace?
The HSE defines workplace violence as ‘any incident in which a person is abused, threatened or assaulted in circumstances relating to their work. This can include verbal abuse or threats as well as physical attacks’. This could be a one-off incident or a pattern of behaviour and could range from minor cases to more serious acts, including criminal offences, which require intervention from external authorities.
There are already a number of civil, criminal and health and safety laws in force which cover a business’ obligations in these sorts of situations. These include:
• The Health and Safety at Work Act 1974 – as an employer you have a legal duty to ensure, so far as it is reasonably practicable, the health, safety and welfare of your employees whilst they are at work.
• The Management of Health and Safety at Work Regulations 1999 - you must consider the risks to employees (including the risk of reasonably foreseeable violence) and risk assess those risks to see if you can prevent or control the risks and then plan how you will do this.
• The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) if death, a specified injury or incapacity requiring seven or more days to be taken off work due to an injury as a result of violence at work, as an employer you must notify your enforcing authority.
• Safety Representatives and Safety Committees Regulations 1977 (a) and The Health and Safety (Consultation with Employees) Regulations 1996 (b) you must inform, and consult with, employees in good time on matters relating to their health and safety.Employee representatives may make representations on matters affecting the health and safety of those employees they represent.
• The Corporate Manslaughter and Corporate Homicide Act 2007 – introduced a new offence, so companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care. For example, where serious failures in the management of health and safety result in a fatality.
• Equality Act 2010- discrimination and harassment under this Act can also be relevant to violence in the workplace. For more information see our article on this topic, here.
The law on employee rights is always evolving, and it is anticipated that new positive obligations will be placed on employers in the forthcoming Employment Bill. Whilst this Bill is still being finalised, it is expected that it will introduce positive obligations on employers to take active steps to prevent their employees from experiencing sexual harassment. The new bill will also introduce additional protection to prevent harassment by third parties, such as customers as a result of the government completing ratification on 7 March 2022 for the International Labour Organisation Violence and Harassment Convention. This is the first international treaty to recognise the right to a workplace free from violence and harassment and is due to come into force in March 2023.
What practical steps can my business take to prevent workplace violence?
Knowing the law is the first step. The more important part is knowing what practical things you can do to make sure you are complying with the law and protecting your employees from risk. The following practical matters are recommended:
• Risk Assessments – we recommended that you carry out a full risk assessment of whether violence is likely to take place in your business and look at how you can prevent or control the risks. Some businesses, sectors and roles are naturally more risky than others. Where you identify that there are risks, it may be helpful to involve the staff affected. As they are the ones who are ‘on the front line’, they will likely be able to help you identify the risks and help you identify and implement measures to protect them. Where your staff are consulted and are part of developing a system, your policies are more likely to be effective and followed in practice. Remember that this must be revisited and updated frequently to make sure that it is effective.
• Review your existing policies – Incidents of violence naturally lead to grievances and disciplinary issues. You should ensure that your grievance and disciplinary policies are fully compliant with the ACAS Code of practice and that staff are fully trained on what the policies say and how they apply to them practically. We also recommend that you have a fuller staff handbook containing other key policies, such as a bullying and harassment policy and, if it applies to your business, lone worker policies and conduct policies. These sorts of policies, amongst others, drafted and updated by a professional, are recommended to ensure that your business is well armed with bespoke and specific protection should the worst happen. Our employment lawyers can help you with this.
• Training – Regular staff training is sensible for any workforce. Training on equality and conduct expected of staff is key and will help you, as an employer, if issues arise and disciplinary, grievance or Tribunal matters arise in the future. In addition, if the work you do places staff at particular risks of violence or aggression (for example, you have staff working with vulnerable members of society), providing training and advice to staff so that they are aware of their obligations at work and how they can de-escalate situations to try and avoid violence. If employees are trained to recognise early signs of aggressive behaviour (in themselves and in others), effectively read body language and how to diffuse contentious situations and respond to these in an appropriate way, this will reduce or even remove the likelihood of violence.
• Safety equipment – It is worth also considering whether physical measures might be appropriate to reduce risk of violence, such as installation of security screens, CCTV, panic alarms, or closer supervision by management or even a security guard, dependent on the level and type of risk involved. These risks will be picked up by the risk assessment we recommend above.
What should my business do if a violent incident takes place in the workplace?
It will of course be dependent on the circumstances in each case as to what action is required to be taken and would be best practice to take. Where an incident arises, we recommend speaking to one of our experienced employment lawyers who can guide you through the appropriate steps to take.
Some general tips are outlined below:
- Where one employee has been aggressive to another staff member or a third party (e.g. a contractor or a customer), it is likely you will need to consider taking disciplinary action in accordance with your business’ disciplinary policy. This may include suspension of the employee, carrying out an investigation and a fair process.
- If there are health and safety breaches, it may be that risk assessments and investigations are required and that a report submitted to your enforcing authority if RIDDOR is relevant. If you are unsure, seek advice from a Health and Safety specialist or the HSE.
- If an illegal act has been committed, it may be that the police need to be contacted. If this is the case, you can continue to follow your business’ disciplinary procedure and reach a decision based on whether there is a reasonable belief in the employee’s guilt, there is a reasonable basis for that belief, and the investigation was reasonable in the circumstances, whilst the criminal case against your employee continues.
What if an employee is arrested for violent conduct outside of work?
Again, much will depend on the specific facts and circumstances, but if a staff member has been arrested for violent conduct outside of work you should consider the following:
• We recommend that you do not act in haste and jump to suspension or disciplinary action without carefully considering the facts. You will need to carry out an assessment of risk – a police investigation does not necessarily mean your employee is guilty. You have to balance that with the risk they pose to your workforce, and much of this will depend on the work they do. It’s worth taking advice from one of our experts before you act.
• If you do suspend, do so on full pay whilst a further investigation is carried out. Particularly consider the damage which could be done to the employee’s reputation and career if you get it wrong.; and
• Be careful not to interfere with any police investigation. If required, delay your investigation until there is sufficient evidence of what has happened (particularly if an employee has been told by their criminal lawyer not to comment on the allegations). However, as above, if there is sufficient evidence and the investigation was carried out fairly, you can form a view on disciplinary action in the absence of a conclusion to a police investigation or criminal prosecution.
If an employee has a spent conviction, provided that they do not work in limited specific professions or jobs or working with children or vulnerable adults, there is no requirement for them to declare it and it would be an unfair dismissal if you later dismissed on the basis of the fact there was a spent conviction or non-disclosure of this, if the employee otherwise qualifies for unfair dismissal. With unspent convictions that you become aware of, it is recommended that the following is considered before any action is taken:
• the nature of the job;
• the nature of the conviction or offence;
• status or seniority of the employee;
• effect the conviction or offence has on the employee’s ability to do their job;
• effect the conviction has on your business;
• any press coverage linking an individual to your business;
• extent to which the work involves contact with the public; and
• previous disciplinary record and length of service of employee.
ACAS guidance on this is that ‘if an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers’. Taking time to consider your options and taking specialist legal advice at an early stage is advisable.
How can you support workers who have been exposed to violence in the workplace?
If an employee has been injured and requires to go home or for medical treatment, you should consider whether an employee will be paid in full and for how long. This should be consistent with what is covered in your current contracts or consistent with any similar incidents, if any, involving other workers.
If an employee wishes to raise a grievance after a violent incident at work, it is important to provide the employee with the business’ grievance policy and provide support as required. You may have an employee counselling service that you might want to recommend and perhaps pay for, where an employee is affected by violence at work.
If an employee has witnessed violence at work, if this was serious and had a traumatizing effect on the employee(s) involved, you would again consider what support you could offer them
After an instance of violence has occurred in the workplace, it is important to review what happened, the procedures that were in place and how they operated and whether they need changing to reduce the chances of reoccurrence in the future.
Summary
Taking disciplinary action against an employee, particularly during an investigation could result in an unfair dismissal claim if you do not handle the situation in the correct manner. Violence, carried out by your employee inside or outside of the workplace should not be treated lightly. We strongly advise you to consult with an employment law specialist before you take action against an employee. It is important that you follow the correct procedures following a violent incident, this includes dealing with any aftermath.
