Assaults on Staff Legal
Legal action against violent
service users Briefing 169
Violent assaults on public service staff in Scotland
continue to increase. Research published by UNISON Scotland at
this year's safety representatives seminar showed that some 25000
incidents were recorded last year. We also know that this figure
understates the real level of assaults on our members as many
incidents go unrecorded. Regretably our research also shows that
many employers are failing to effectively address this issue with
ineffective monitoring systems. Therefore we need to look at other
measures we can take to protect members.
Legal solutions have a role to play in protecting
staff although they will rarely be the remedy of first instance,
with the obvious exception of safety law. This briefing therefore
looks at the legal options in Scots law and suggests ways the
law may be used to tackle violent incidents.
Health and Safety
The starting point in addressing risks to workers
from assaults is effective health and safety provision in the
workplace. Since the Health and Safety at Work Act 1974 (HSWA)
employers have had a duty to provide for the health and safety
of their employees and this covers those employees who face a
predictable risk of assault. The Management of Health and Safety
at Work Regulations 1992 introduced the concept of risk assessment,
the removal of risk at source and the introduction of comprehensive
preventative strategies to control those risks that cannot be
eliminated. The key phrases are risk assessment and coherent
overall preventative policy.
The HSE defines work related violence as:
"Any incident in which the employee is abused,
threatened or assaulted in circumstances arising out of the course
of his or her employment". The risks of assault should
therefore be recognised within a policy on violence at work developed
in partnership with workplace safety representatives. The policy
should start with a clear commitment to prevention and make clear
the methods of risk assessment, arrangements to achieve safe workplaces
and the reporting and monitoring arrangements. Detailed guidance
is set out in UNISON publications on this issue.
It should be remembered that there is a reluctance
to report violent incidents and therefore safety systems only
work if there is an established work culture that takes this issue
seriously. This is not limited to physical assault. As the HSE
puts it "physical attacks are obviously dangerous but
serious or persistent verbal abuse or threats can also damage
employees' health through anxiety or stress". The Scottish
Government has published guidance on phone rage in partnership
with the trade unions including UNISON Scotland. The provisions
of the HASWA are enforced by the HSE. Employers who fail to provide
safe systems of work are liable to enforcement action and/or prosecution.
Civil Legal Action
While prevention is always better than cure, workers
who are assaulted, threatened or abused at work have legal remedies
under the civil law available to them. These can result in damages
against the employer or individuals and unwelcome publicity for
organisations that are found not to have taken preventative action.
The most common remedy is an action for delict commonly
known as personal injury claims. To claim against the employer
the worker would have to show negligence on behalf of the employer
and that they could reasonably have foreseen that the injury would
take place. Obviously employers with clear policies that are effectively
implemented are much less likely to be liable. So prevention makes
good business sense as well.
In theory an action for delict could also be raised
against the assailant perpetrating verbal abuse. The difficulty
in many violent assault cases has been the lack of resources that
the assailant may have, making such an action ineffective. However,
there is at least some anecdotal evidence that verbal abuse is
more equally spread across socio economic groups. Actions have
been raised on behalf of traffic wardens in England when it was
discovered that abuse was perpetrated by BMW drivers. The resulting
publicity was a very effective preventative action and the level
of recorded abuse dropped dramatically!
Providing a safe system of work is an implied term
of the contract of employment. Therefore failure to address violent
incidents could be regarded a breach of contract. If this was
significant the employee may be entitled to regard the contract
as at an end and claim unfair constructive dismissal with the
Violent incidents may also lead to actions against
the employer, or individuals, under discrimination law. Obvious
examples include abuse based on sex or race discrimination. Also
some disabled staff might (e.g. mental health) have lower
thresholds for tolerating violent, difficult or challenging behaviour
from service users. Adjustments might include additional training
and support, relief, respite or possibly redeployment.
Criminal Legal Action
The criminal prosecution of an assailant can provide
an effective remedy for a worker subjected to violent incidents
and act as a deterrent to others. This was the thinking behind
the Emergency Workers (Scotland) Act 2005 (EWA). The EWA makes
it a specific offence to assault, obstruct or hinder someone providing
an emergency service - or someone assisting an emergency worker
in an emergency situation. More than 1000 people have now been
charged under this legislation. UNISON Scotland is campaigning
to extend the scope of this legislation to cover a wider group
The EWA is generally used for less serious violent
assaults. More violent incidents can be prosecuted using a range
of common law offences from assault to murder. Guidance from the
Lord Advocate also provides for an assault on a public service
worker to be regarded as an aggravated offence. This should result
in a heavier sentence if convicted.
In Scots Law it is generally accepted that a verbal
attack does not amount to an assault. Macdonald in 'Criminal Law
of Scotland' states "Mere words cannot constitute an assault".
However, "gestures threatening violence so great as to put
another in bodily fear, whether accompanied by words of menace
or not, constitute assault" (Atkinson v HM Advocate). This
demonstrates that actual injury is not required in those special
As words alone generally don't amount to an assault
the common law seeks to deter the using of words and actions in
such a matter as to cause fear and alarm through threats. Threats
can be made in both verbal and written form and they must cause
serious alarm for the recipient. It is of no consequence that
the accused really didn't intend to cause serious alarm; it was
enough that the threats had been communicated. Obviously the threats
must be serious to constitute an offence.
The Scots common law of breach of the peace may
also be applied to verbal abuse. This is a wide ranging offence
the test of which is "whether the proved conduct may reasonably
be expected to cause any person to be alarmed, upset or annoyed
or to provoke a disturbance of the peace". Actual alarm is
not required and it can take place in public or in private. Aggressive
shouting and swearing has been enough for a conviction particularly
when refusing to desist when called upon to do so.
Workers who are the victims of a criminal act may
claim Criminal Injuries Compensation. There is a relatively straightforward
claims process although the Tariff of Injuries is fairly low,
the process can be lengthy and is currently the subject of review.
None the less given the number of assaults on members each year
the numbers of claims are very low and branches should encourage
more members to claim.
Protection from Harassment Act 1997
In terms of Section 8 of this Act every individual
has the right to be free from harassment and the person must not
pursue a course of conduct which amounts to harassment of another.
The course of conduct must either be intended to amount to harassment
of the person or occurs in circumstances where it would
appear to a reasonable person that it would amount to harassment
of that person.
The course of conduct must involve conduct
on at least 2 occasions.
The harassment includes causing the person
alarm or distress.
The conduct includes speech. This means that
the conduct in question is therefore not confined to physical
abuse or violence. It applies to verbal abuse.
Recent cases have included shouting and swearing,
threatened violence etc. The leading case describes the difference
between irritating behaviour and harassment as;
"Courts would have in mind that irritations,
annoyances, even a measure of upset arose at times in everybody's
day to day dealings with others. Courts were well able to recognise
the boundary between conduct that was unattractive, even unreasonable
and conduct which was oppressive and unacceptable."
Remedies include damages against the harasser and
this includes for anxiety not the higher test of a recognised
illness required in personal injury cases. The second and more
immediate remedy for the court in such civil proceedings is where
it can make an order known as a "Non Harassment Order" (NHO) requiring
the harasser to refrain from conduct in relation to the person
in question. The consequences of breach of an NHO are that it
is automatically a criminal offence in terms of Section 9. The
maximum sentence for such a breach is imprisonment for a term
not exceeding 5 years or a fine or both. Another advantage of
NHO is that there are powers of arrest to the police for breach
of an NHO. No warrant is necessary and they have the power of
arrest where a person is reasonably suspected of breaching
an NHO. It is specifically provided that the Power of Arrest exists
where the NHO has been granted in civil proceedings. Provided
the arrest is carried out on the above basis it may be more than
enough to ensure there is future compliance with an NHO. Indeed
the threat of even calling in the police may be sufficient.
The Protection from Harassment Act can also be used
for criminal proceedings and therefore initiated by the police
and pursued by the Procurator Fiscal. However, the real importance
is the availability of civil proceedings whereby the victim can
initiate and pursue an effective remedy themselves with legal
assistance. For further details see P&I Briefing 150.
Action for branches
The best approach to reducing violence at work is
to prevent assaults through effective safety measures in the workplace.
However, legal action can play an important role in preventing
assaults, convicting offenders and achieving compensation for
UNISON branches and activists have an important
role in encouraging members not only to record all violent incidents,
physical and verbal, but to take legal action. In criminal cases
that includes reporting the matter to the police. In civil cases
UNISON's legal assistance scheme can help and members should complete
the relevant UNISON legal assistance form.
UNISON Scotland's website safety section has copies
of the reports and guidance referred to in this briefing as well
as links to the UK website. UNISON's legal assistance scheme can
be accessed at http://www.unison.org.uk/benefits/legal.asp
The Scottish Government Safe at Work campaign has
a range of materials of assistance to branches at http://www.infoscotland.com/violenceatwork
Dave Watson - firstname.lastname@example.org
@ The P&I Team,
14 West Campbell Street,
Glasgow G2 6RX
Tel 0870 777006
Fax 0141 342 2835
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