Assaults on Staff Legal Action

Legal action against violent service users Briefing 169

November 2007

Introduction

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 associated damages.

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 of workers.

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 circumstances.

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 members.

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.

Further Information

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

Contacts list:

Dave Watson - d.watson@unison.co.uk

@ The P&I Team,

14 West Campbell Street,

Glasgow G2 6RX

Tel 0870 777006

Fax 0141 342 2835