HSE LAC 88/1

Posted: Sat Jun 05, 2004 7:01 am

The following text has been taken from a local area health authority circular. These circulars are issued by the HSE as guidance notes for enforcement of legislation.
We have posted this one here for feedback prior to sending and requst for amendedment to the HSE.
This LAC was last revised in 2000 and is due for revision in April 2005

Quote:

VIOLENCE TO PERSONS AT WORK: GUIDANCE FOR ENFORCEMENT OFFICERS

INTRODUCTION
1 This local authority circular:

explains HSE's definition of violence and the law which applies;
describes HSE's initiatives to date; and
outlines enforcement policy.

BACKGROUND
2 Although existing case law refers only to actual assault, for policy reasons HSE's definition extends further to cover abuse and threats. This is because both abuse and threats if not dealt with adequately can lead to physical violence and can be indicative of a working environment where there is a threat of such violence.

DEFINITION OF VIOLENCE
3 HSE's definition of violence is:

"Any incident in which an employee is abused, threatened or assaulted in circumstances relating to their work",

4 The definition includes violence to employees at work by members of the public, whether inside a workplace or elsewhere, when the violence arises out of the employees' work activity.
For example, this might include violence to teachers from pupils, to doctors/nurses from patients, to peripatetic employees whose work involves visiting the sick, or collecting payments, to security staff or to officials enforcing legislation.
It would not include violence to persons when not at work, e.g. when travelling between home and work or violence outside their normal working hours, even though where such risks were significant, employers might wish to take action to safeguard their employees.

LEGAL POSITION
General
5 Violence towards employees generally comes from one of 2 sources:

the public, whether customer, client (including hospital patients, prisoners, people in detention etc) or bystanders
and

other employees.
6 Various legislation provides employees with legal redress. The position is summarised below.

Health and Safety at Work etc. Act 1974
7 An employer's responsibilities under HSW Act s,2 extend to protecting staff from violence. In the decided case West Bromwich Building Society v Townsend [l 9831 IRLR 147, a principal environmental health officer served an improvement notice on the building society requiring the installation of screens to protect staff against attack. Although in the particular circumstances of that case, the High Court found for the Society, in his summing up Mr Justice McNeill stated that protecting staff from violent attack was not out with an employer's responsibilities under HSW Act s.2.

8 HSW Act is a wide ranging Act and could be applied to almost any incident of violence at work. However, it is HSE policy not to enforce the Act where there is other more specific legislation. In practice it is intended that attention should focus on protecting employees where there is a significant risk of violence from members of the public. An exception to this general rule would be where skylarking or other incidents between employees warranted action under HSW Act S.7.

The Management of Health and Safety at Work Regulations 1999
9 The Regulations require employers to assess risks to employees an make arrangements for their health and safety by effective planning, organisation, control, monitoring and review. Where appropriate, employers must assess the risks of violence to employees and, if necessary, put in place control measures to protect them.

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)
10 Employers must notify their enforcing authority (HSE or LA) of any accident at work to an employee resulting in death, major injury or incapacity for normal work for three or more days. This includes any act of non-consensual physical violence done to a person at work.

Safety Representatives and Safety Committees Regulations 1977 and The Health and Safety (Consultation with Employees) Regulations 1996
11 These Regulations require employers to inform and consult employees on matters relating to their health and safety. Employee representatives may make representations to their employer on matters affecting the health and safety of those they represent.

Sex Discrimination Act 1975 and Race Relations Act 1976
12 Both these Acts deal in part with verbal abuse in specific contexts and are enforced by the Equal Opportunities Commission (EOC) and the Commission for Racial Equality (CRE) respectively. Their addresses are given at the appendix. CRE and EOC only pursue cases of abuse between employees. There are no formal agreements between the CRE, EOC or HSE/HELA on the subject of demarcation but enforcement officers should normally refer cases of sexual or racial abuse to these bodies.

Employers' common law duties
13 An employer's duties under common law and employment law can be summarised as a duty to take reasonable care to:

lay down a safe system of work;
provide safe premises and/or place of work; and
provide safe plant and equipment,
14 This has been interpreted as including a duty to protect staff from violent attack from the public. If an employee considers the employer has failed in his/her duty of care, redress is available on 2 fronts. If injury has occurred the employer can be sued for negligence. If, however, no injury has occurred but the employee has left the job because he/she considered the risk of injury unacceptable, then it might be possible in some cases for the employer to be sued.

15 Violence between employees should normally be dealt with as a personnel matter by the employer, but see paras 7,8 & 12.

Public Order Act 1986
16 The Public Order Act 1986 (P0 Act) is enforced by the police and covers threats and abuse as well as physical assault. There could be some interplay between the PO Act and HSW Act where cases of violence occur. However police action under the PO Act will be directed against the perpetrator of the violence whereas HSE's & Local Authorities' activities will be directed towards assessing whether the employer complied with his/her general duties under HSW Act. The PO Act also only applies after an offence has been committed and cannot be used to require preventive measures beforehand.

HSE INITIATIVES
Inter-departmental Committee on Violence to Staff (CVS)
17 In 1983 HSE formed the Inter-departmental Committee on Violence to Staff (CVS) to provide a broadly based forum for discussion of violence at work. It includes representatives from the CBI, TUC, other government departments, the Federation of Small Businesses, Victim Support and the Suzy Lamplugh Trust. LAU is a member of the Committee. CVS has held a number of seminars to promote awareness of violence in the workplace.

Research
18 HSE’s Self-reported Working Conditions study (SWC) 1995 showed that 6% of males and 8% of females (approximately 1.8 million workers) reported being physically attacked in their current job.

19 The SWC statistics led HSE to commission an analysis of the British Crime Survey (BCS). The results, “Violence at Work: Findings from the British Crime Survey”, were published in October 1999 and reported that there were 1.2 million incidents of physical assaults and threats at work in 1997. The BCS indicates that some occupations may be more at risk than others, e.g. police, social workers, bar staff, security guards, transport workers and health care professionals.

GUIDANCE FOR EMPLOYERS
20 HSE has published a general guidance leaflet “Violence at Work: a guide for employers, IND(G)69L, revised in 1997. The guidance sets out a 4 stage approach:

STAGE 1 - finding out if you have a problem

STAGE 2 - deciding what action to take

STAGE 3 - take action

STAGE 4 - check what you have done.

Application of these guidelines should be in the context of managing health and safety at work and employers should involve employees at all stages.

21 More specific sectoral guidance has also been produced. The Health Services Advisory Committee produced Violence and agression to staff in the health services. Guidance on assessment and management, 1997 and the Education Advisory Committee produced Violence to staff in the education sector, 1997. HSE has also produced guidance, Prevention of Violence to staff in banks and building societies (HS(G) 100), 1993 and Preventing violence to retail staff (HS(G)133), 1995.

ENFORCEMENT APPROACH
22 Violence to staff is a hazard like any other and should be addressed by enforcement officers when making an assessment of an employer's compliance with their health and safety duties. General guidance from HSE has been available since 1989 and has been supplemented by more detailed practical guidance for some sectors, eg health and education.

23 The HSE guidance leaflet on violence gives examples of the sort of work which is most likely to put employees at risk:

handling money or valuables, especially in a financial or retail setting;
providing care, advice or training;
carrying out inspection or enforcement duties;
working with mentally disturbed, drunk or potentially violent people: and
working alone.
It is in these work activities that enforcement officers will need to pay particular attention to employers' measures.

24 Where risk assessments for the purpose of the Management of Health and Safety at Work Regulations 1999 identity violence as a significant risk, the assessment should enable the employer to identify and prioritise the measures that need to be taken to manage the risk of violence to employees,

25 At preventive inspections of undertakings where there is a significant risk of violence to employees, enforcement officers should probe the employer's policy, organisation and management arrangements. Constructive criticism, advice and guidance may often be all that is required to persuade an employer to take appropriate action. A structured approach to managing violence should be encouraged using the principles outlined in "Successful health and safety management" (HS(G)65).

26 The use of formal enforcement powers will depend on the particular facts in each case. In cases where advice and guidance has failed to secure necessary changes, or where advice is not an option, enforcement officers should consider whether formal enforcement might have the desired effect. For example, an improvement notice might be particularly effective in focusing an employer's attention on the specific measures they need to address.

Complaints
27 Complaints dealing with verbal abuse will not normally justify investigation; in most cases the employer will be best placed to resolve such problems. Complaints of sexual or racial abuse between employees should similarly not normally justify investigation and the complainant should be referred to the EOC or CRE (see appendix). For other complaints the normal criteria for investigation will apply.

Accidents
28 In cases of serious physical assault and death the police will be involved. Their role is complementary to but different from that of HSE and Local Authorities. The enforcement officer's role should be to enquire into the arrangements/systems in place for dealing with problems of violence and their adequacy in the light of the incident.

Action by enforcement officers
29 At preventive inspections enquiries about violence to employees should be made where there is a significant risk (paras 22-24).

Posted: Mon Jul 19, 2004 5:50 pm

Intrigued as to what amendments you are referring to. The title of this document does not make clear who it refers to. As it is applicable to Local Authorities, an Enforcement Officer is someone who has been given delegated authority under the Local Authorities Act. This would never be applicable to the Security Industry as it is a totally different line of work. if I have got the meaning wrong then fair enough or perhaps a more in depth meaning is required?

Posted: Mon Jul 19, 2004 6:30 pm

Leon,
I've forwarded a copy of the info that I passed over to John; it’s a response for information on security staff injuries etc. Hope this helps?