Posted By Jim O'Dwyer
How will claimants be affected?
At present, the CICA scheme offers a relatively fast track to financial compensation for victims. Making an application is reasonably straightforward and currently the average time to settle a case is only 39 weeks, which is much faster than making a claim for damages in the civil courts.
Making a claim for Criminal Injuries Compensation also does not require an employee to publicly "criticise" their employer's safety arrangements or to cite inappropriate decisions made by senior managers as contributory factors.
Whilst compensation payments under the CICA scheme are broadly in line with the amounts awarded by the civil courts, compensation payments awarded by the civil courts tend to be larger. This is because Civil Court awards are not subject to the CICA scheme's £500,000 cap. They can take account of a greater element of lost earnings and future care. They can include exemplary damages relating to the manner in which the injury was caused or increased and they can also include aggravated (punitive) damages intended to punish the defendant.
So, if the government implements the proposal to exclude victims of violence at work from the CICA scheme, claimants are likely to receive higher levels of compensation. But, they will probably have to wait longer to get it and the increased complexity of making a claim and/or fear of repercussions by their employer may dissuade many victims from making a claim at all.
How will organisations be affected?
Implementing the government's proposals would affect both private and public sector organisations.
The exact scale and nature of the impact is not yet clear.
But, it is safe to predict that if they're unable to access Criminal Injuries Compensation, employees who've suffered violence at work are going to consider claiming against their employer in the civil courts. (The casual approach to the problem of violence at work taken by the vast majority of employers leaves this route open to practically all claimants).
Although, initially, many potential claimants may be put off from taking legal action against their employer (out of misplaced loyalty to or fear of reprisals from their employer) increasing numbers will go ahead, laying the ground for others to follow.
Organisations in the private sector will also face rising insurance premiums (linked to the risk of adverse outcomes occurring).
The public sector is exempt from the Employers Liability Compulsory Insurance requirement. So, the same leverage (i.e. of increasing premiums) won't apply to public sector senior management. But, if the government's proposal to exclude cases where employees have been assaulted at work from the CICA scheme is implemented, a new Agency will need to be established to consider and process compensation applications from public sector employees (i.e. in the form of civil actions for negligence, breach of statutory duty, breach of contract etc).
If this new Agency had the authority (and capability) to fully investigate incidents and the power to allocate and apportion blame where appropriate and if responsibility for inappropriate safety standards was something always diligently tracked following incidents and, where evidence of connivance, neglect or consent exists, (career threatening, if not liberty threatening) blame was apportioned to the individuals responsible – it would probably have the same effect!
The question is, what will the cost be of setting up and running the new Agency and does that represent a saving over the current CICA system or not?
And, what is the likelihood of getting an effective Agency over the probability of getting another CSA instead?
The predictable outcome?
The predictable outcome of excluding victims of violence at work from claiming Criminal Injuries Compensation is mayhem!
The cost to private sector employers of the 'transfer of responsibility' for compensating victims of violence at work plus the additional expense of meeting legal expectations in relation to protection against violence is likely to inhibit many businesses from operating in high risk (e.g. socially deprived) areas.
Some private sector business communities, such as the retail, travel and alcohol industries, have been engaging with the Government in a range of (costly) voluntary partnership arrangements to prevent crime. Having to fund compensation for criminal injuries might provide a disincentive to continue such partnerships and could lead to disengagement from their partnership working.
Victims of violence at work tend to be those in precarious employment, the lowest paid and the least able to access and successfully utilise the Justice system.
Making it more complicated (and risky) for them to get compensation will mean that many deserving cases will not be taken up and ultimately, that means a lot of dissatisfied, discontented people - and in any society that spells trouble!
All to "save" less than £2.5 million per year!
There's another unsavoury proposal in the consultation too!
Currently, the CICA scheme provides compensation to employees injured in the course of (crime prevention) duties when taking an exceptional risk.
The government is suggesting that this be discontinued.
It's not the first time the proposal has been made. It featured in the 2004 consultation too.
And, after the 2004 consultation, in its Summary of Responses the Government accepted the arguments made by respondents and was not going to implement the proposal.
The compelling "arguments" included:
? There are ‘grey areas’ in defining what constitutes ‘exceptional risk’, removal of this provision might simply lead to more review and appeal cases for CICA and the Criminal Injuries Compensation Appeals Panel (CICAP).
? The failure to ensure commensurate compensation through alternative means might lead police officers and others to decline to take undue risks in the course of duty. This would not be in the public interest and could lead to situations arising where the public might not be as fully protected or served as they might expect.
? Private sector employees, such as those that work in the retail sector, who face shop lifters and other criminals, may be discouraged from seeking to prevent crime and apprehend criminals.
Note: 48% of successful "course of duty" claims are from Police officers and, last year, 77% of the successful police claims (and compensation paid) were in respect of injuries sustained accidentally while taking an exceptional risk.
Without a replacement 'incentive' for going the 'extra yard' people are going to be less likely to put themselves at risk in the public interest.
Would you feel safer knowing that?
Best wishes,
Jim O'Dwyer