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#1 Posted : 03 November 2004 16:47:00(UTC)
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Posted By Jonathan Breeze Yesterday, the Merseyside branch had a discussion on violence in the workplace which raised the following question: How far (and to what level) are employers responsible for the health, safety and welfare of their staff outside of the workplace and normal working hours? Do forum members have any thought or suggestions?
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#2 Posted : 04 November 2004 16:10:00(UTC)
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Posted By Timothy Capner Hi Jonathan I missed the meeting, I'm a member, based in Chester, and it's an issue that does interest me. Back to your posting - the idea that an employer is responsible for an employee outside the workplace/out of hours, strikes many as nonsensical. My response has always been, is that employee on company business at that place or at that time? And I use the example of seminars that may require an overnight stay away from home. In this case I argue that the employer must satisfy themselves that their employee is in a safe environment. I appreciate that an employer cannot control a conference centre or hotel but can at least ensure that it's a reputable organisation and ask for a list of delegates. Further on from this we can also consider employees who have to 'visit' members of the public or other organisations - this area of work has in the past lead to tragic consequences for employees. I would say that the majority opinion is that if an employee is asked to go somewhere at a certain time the employer must take reasonable steps to ensure the employee's health, safety and welfare. That 'somewhere' is effectively the employee's workplace. Regards Tim C
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#3 Posted : 04 November 2004 16:58:00(UTC)
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Posted By Kieran J Duignan Jonathan As you pose the question in terms of 'How far (and to what level)', I think the first two elements protocal of risk assessment in the Management of Health and Safety at Work Regulations 1999 may be helpful in determining the levels of risk exposure. 1. Particular forms of hazards of violence depend on who can be foreseen as likely to cause violence, the times and places involved, and the degree of reliability of controls on them. Exposure will be higher where lone working is involved 2. To whom relates to a variety of personal factors including gender, fitness, height, weight, ablebodiedness and physical disabilities. In some public sector settings (e.g. a female psychiatrist called out for a home visit), it is now standard for the employee to be in frequent liaison with the police when she is at risk of violence - and they intervene PDQ if need be. Outside the public sector operations of this kind, some private firms provide a 24/7 emergency alarm service
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#4 Posted : 04 November 2004 17:18:00(UTC)
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Posted By Adrian Watson Dear Jonathen, In answer to your question How far (and to what level) are employers responsible for the health, safety and welfare of their staff outside of the workplace and normal working hours? In response, employers are not at all responsible if the person is not at work; however, if the person is at work then to the degree that the employer has control of the work place and to the degree of risk caused by the employees work activities. I.E. if the risk assessment identifies a high risk, then you must eliminate the risk or where this is not reasonably practical reduce it. So you must ask can I eliminate the risk etc, or can I modify the work activity or the system of work to eliminate the risk or reduce it as far as is possible. Regards Adrian Watson
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#5 Posted : 04 November 2004 17:29:00(UTC)
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Posted By Kevin Walker But what if the violence is between two people who work together at an after hours function where others from the same work place are gathered. Then this too would be the same as at work. Or is this just an argument for the sake of it. Kevin
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#6 Posted : 04 November 2004 21:44:00(UTC)
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Posted By Adrian Watson It is not at work and thus it does not come under H&S law, but it may fall within the duty of care and thus there may be a common law duty of care. Regards Adrian Watson
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#7 Posted : 05 November 2004 10:13:00(UTC)
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Posted By Jonathan Breeze Thanks for the responses folks, I was beginning to think the question was a non-starter. Yes, obviously risk assessment is the basic starting point and findings will vary on context etc. However, consider the following scenario: 1) An employee meets with an unwilling client who has been referred to the organisation by another agency. 2) The employee sticks to the script througout & follows standard operating procedures. 3) Later, the client sees the employee outside of work and threatens them because of what occurred during the work setting. It seems to me that while the employee is not at work at that time, the altercation has arisen as a direct result of work as the client does not make the same legal distinction of 'at work' & 'outside of work'. So what would be the employers responsibilities and duties to the employee in that circumstance? (PS - I will be varying the scenario throughout the discussion)
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#8 Posted : 05 November 2004 13:32:00(UTC)
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Posted By Kieran J Duignan Two further issues arise in relation to the scenario you now outline jonathan: 1. If the client is a youth, and the employee has worked with him/her in school or other educational setting, it may be advisable for the employer to negotiate safeguards that include liaison with those in the educational setting in case a problem of employee harassment arises there 2. Whether the client is a youth or an adult, the employees should be consulted about a policy on circumstances in which police should be advised and, if the individual threatening is on probation, when his/her probation officer or court is advised. This has to be handled extremely sensitively in multi-racial settings but employees should be clearly informed that they are not simply left to their own devices if they are threatened. May I compliment you on your attention to this difficult set of issues; a serious suggestion is that perhaps you should write it up for professional publication both in the safety press and for the guidance community
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#9 Posted : 05 November 2004 23:12:00(UTC)
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Posted By Jim O'Dwyer Hi, The HSE define violence at work as: 'Any incident in which a person is abused, threatened or assaulted in circumstances relating to their work’. The incident Jonathan has outlined is definitely violence and whether it happened during working hours or not it was certainly work related. But, there is (as yet!) insufficient information to make a judgement as to legal responsibility - and liability. This is because legal responsibility for any "injury" sustained by the employee would very much depend on the foreseeability of such an incident happening. For a case of negligence to succeed there needs to be: 1. A 'duty of care' For a duty of care to exist it must be reasonably foreseeable that in taking (or not taking) a particular action the victim would be harmed. The case of Stokes v Guest, Keen and Nettlefold (Nuts and Bolts) Ltd., 1968, provided a 'statement of general principle' that the overall test is ... "the conduct of a reasonably prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know." 2. A breach of the duty It's always a question of whether the degree of care shown was "reasonable in the circumstances". 3. Consequential damage The plaintiff must suffer some sort of loss. The loss must be consequential to the duty failure and it must be reasonably foreseeable that it would follow from the 'injury'. The circumstances described do not make it clear whether or not the employee suffered any 'injury'(i.e. physical or psychological harm). But, in any event, my gut feeling from the comment "an unwilling client" is that the kind of incident that has been described was probably strongly predictable from the nature of the employee's work and from the client's history. If that was the case and harm had resulted, then it would be a matter of whether or not the employer had taken reasonable steps to prevent the harm from occurring etc. The organisation may well have done everything reasonable and practicable and be able to excuse themselves from legal liability. However, my guess from experience is that the "average employer" would be unlikely to be able to demonstrate that they had exercised due diligence etc - especially if there was no mention of "the risk" in the Organisation's Risk Assessment - and liability for what happened would be likely to follow! Best wishes, Jim O'Dwyer
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#10 Posted : 06 November 2004 09:32:00(UTC)
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Posted By Kieran J Duignan Jim's thoughtful observations prompt me to realise that there are more than the prospect of physical hazards in a threat of violence. That is to say that, in the circumstances described by Jonathan, the employer has a duty to safeguard employees from foreseeable stress that may be harmful; stress associated with a threat of violence from an 'unwilling' client comes into this category. The social environment is also worth considering in this context. I discussed Jonathan's conjecture with a friend who has worked as a career guidance officer with teenagers in a v. multi-racial inner-city environment for 30 years, including 10 years as an 'outreach' officer. She said that in this time she has known of only 1 occasion in which a colleague was hit. She attributes the relatively good record of safety from violence to a. the employer's policy that staff should normally not work with clients alone b. the presence of many other people in an inner city milieu almost all the time c. the manner (e.g. blend of extroversion and detachment) with which the employee communicates d. the physical presence (often height but not only height) of the employee
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#11 Posted : 06 November 2004 20:58:00(UTC)
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Posted By Jim O'Dwyer Thanks for your kind comments Kieran. The 'formula for success' you've put forward is soundly based. What would also help is fully appraising employees of the risks they face and giving them advice on what steps to take if they feel threatened. I'm thinking now of a form of "work related violence" that too few organisations have addressed, which is - the potential for employees to become the victim of a stalker as a conseqence of a work related encounter. It is a really huge problem. BCS indicate that more than 1 in 10 adults have been victims of stalking. So, you are more likely to be a victim of stalking than burglary! (http://www.homeoffice.gov.uk/rds/pdfs/hors210.pdf) How much of it is workplace initiated isn't clear, but it is not going to be an insignificant number. Is it? Think of all the occupations where employees would be at high risk - GPs, Nurses, Carers, Security Guards - and, well, everyone really! Not knowing that help and support is available from the employer organisation can lead to victims suffering in silence and not taking appropriate action. The worry and stress involved can deprive the victim's employer of a useful staff member's services for a long time, if not completely. Advising employees is vital. Another absolutely crucial protective measure is a means for people (not just employees) to use to raise / discuss any issues or concerns that absolutely guarantees anonymity. The goal has to be "to gain information from any source that might affect the way the organisation conducts its affairs." I'm thinking now about the potential for domestic violence to spill over into the workplace. It would be best to know in advance that an employee's ex was coming to the workplace to cause trouble. Wouldn't it? In summary, if the employer acts "reasonably prudently, taking positive thought for the safety of his workers in the light of what he knows or ought to know", they should be OK! Best wishes, Jim O'Dwyer
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#12 Posted : 08 November 2004 10:35:00(UTC)
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Posted By Jonathan Breeze Thanks to both Kieran & Jim for your valuable input into the topic over the weekend. Your comments have helped me crystallise my thoughts and if any guidance results I will be sure to advise the forum. Jims comments about forseeability of risk are valid (to my mind the fact that we are discussing the potential for such an incident suggests a degree of forseeability). The comments about duty of care (raised by Adrian & Jim) would therefore apply. As Kieran has identified, this potential violence can be but is not exclusively physical. The fear of 'work coming home' can also create great mental stresses on an individual. Feel free to comment further on the above issues if you have anything to add. Jim has touched on another issue raised during the meeting which I would like to develp further, that of stalking. To what extent would an organisation have a duty of care to ensure it's employees remain untraceable?
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#13 Posted : 08 November 2004 10:59:00(UTC)
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Posted By Kieran J Duignan In relation to Jonathan's question 'To what extent would an organisation have a duty of care to ensure it's employees remain untraceable?', I think you're into one of the imponderables, at a general level. Probably a good source of guidance on how to protect staff from stalkiing and harassment would be a police officer with experience of child protection; they do some very sensitive work and have to learn to protect themselves against serious risks of harm. One form of support that I would think would be advisable is your company hasn't already made it available free of charge is access to counselling and/or post-traumatic incident debriefing on an anonymous basis from suitably qualified independent counsellors. In my experience, trauma can be reasonably quickly resolved as long as is addressed soon after the event before the traumatised person loses practically all hope of 'recovery'.
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#14 Posted : 08 November 2004 21:33:00(UTC)
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Posted By Jim O'Dwyer I don't think it would be feasible for an employer to protect an employee's identity sufficiently to prevent a stalker finding out who they are and where they work. In any event, it seems, from the reading that I've been doing, that most victims know their stalker (and, incidentally, about a third of stalkers turn violent!) If the stalker knows where/ when the employee would be at work, it would be relatively easy to wait for and then follow the victim, learn more about them, etc. I know how easy it is to do that from my experiences as a PI. The best defence against this form of harassment is acknowledging that it exists, warning everyone, providing a procedure for victims to follow (reporting etc) and encouraging early reporting of concerns, so that a 'whole organisation' response can be engaged. An ex policeman who can help on this subject is: Hamish Brown MBE, Hamish is a leading authority on the interpretation and application of stalking legislation in the United Kingdom and he offers advice and guidance via his web site: http://www.hamishbrownmbe.com/ What research is being done on this? A Charity organisation called the Network for Surviving Stalking (NSS), in partnership with the University of Leicester, have set up a research project that aims to provide evidence to support their campaign to raise awareness of stalking and improve services and support for victims. You can help by completing their on-line questionnaire at: http://www.stalkingsurvey.com/ All responses are 100% confidential. The results of the research will be released as part of the UK's first Stalking Awareness Week in early 2005. Best wishes, Jim O'Dwyer
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