The year-on-year increase in harassment, violence and aggression against staff working in healthcare and emergency services and the continued reporting of harassment in the workplace is a significant concern for both workers and employers. In this insight, we look at the recent reports on increased violence and how employers can meet their legal obligations to ensure the health, safety and welfare of staff.

Background

There has been press coverage recently of statistics which reveal that, since the start of the COVID-19 pandemic in 2020, assaults against those working in healthcare organisations, fire and rescue services and ambulance trusts have become more widespread and continue to rise. For example, it was reported in the press in May 2023 that incidents of violence against staff at one NHS Trust had doubled between 2020 and 2021 and increased again between 2021 and 2022 by almost 18%. This was despite violence reduction and safety measures being implemented in January 2022 at the Trust and various initiatives being put in place nationally. National programmes include the NHS Violence Prevention and Reduction Standard, the ambulance sector’s Violence Prevention & Reduction and Operation Hampshire in the police services. 

Often local steps are taken to:

• protect staff from abuse, aggression and violence
• encourage staff to report such incidents
• support those affected
• take action against perpetrators.

The latest from the Health and Safety Executive (HSE)

The HSE updated its guidance on violence and aggression at work in March 2023. This guidance is the key starting point for employers managing the risks of violence at work.

In the guidance, the HSE defines violence at work as any incident in which a person is abused, threatened or assaulted in circumstances related to their work which includes physical attacks and verbal abuse or threats.

In March 2023, the HSE completed a report into the inspections carried out in the NHS between 2018 and 2022. The report identified a number of key findings and recommendations for the management of risks from workplace violence and musculoskeletal disorders (MSDs) in the NHS. The report identified management failings in four broad areas:

• risk assessment
• training
• roles and responsibilities
• monitoring and review.

The inspections found that while NHS employers have policies and procedures in place, the problem is that they are often not monitored or reviewed to ensure that they work in practice or remain effective.

HSE shared its findings with NHS Chief Executives across Great Britain, NHS stakeholder groups and NHS unions. We understand that there are plans to carry out further inspections in the NHS over the next 12 months, focusing on the key areas identified in the report.

Employer responsibilities and risks

Together with an employer’s obligations in respect of health and safety, which are enforced by the HSE, employers have a general common law duty of care in respect of their employees which may not be met if they do not properly assess the risk of violence to staff. A breach of the duty of care, where the harm to an employee was reasonably foreseeable by the employer, may lead to claims for compensation by an employee including personal injury.

Employers may also be liable for the acts of their employees carried out in the course of employment. This could include an act of violence or aggression by an employee against another employee, if there was a sufficient connection between the broad nature of the employee’s job and their wrongful conduct to make it right for the employer to be held liable.

Employers should also note that they could incur liabilities when an employee harasses another employee in breach of the Equality Act 2010 and/or the Protection of Harassment Act 1997. 

Going forward, there are plans to re-introduce employers' liability for harassment of their employees by a third party. The Worker Protection (Amendment of Equality Act 2010) Bill (the Bill) is currently progressing through Parliament and it will come into force one year after it is passed. The Bill imposes liability on employers where:

• the third party harasses the employee in the course of their employment
• the harassment is in respect of a relevant protected characteristic
• the employer failed to take all reasonable steps to prevent the third party from doing so.

There is no requirement in the Bill, as currently drafted, for there to have been previous occurrences of harassment before an employer becomes liable. The Bill also introduces a duty on employers to take all reasonable steps to prevent sexual harassment of their employees.

Even without a legal basis for a claim against an employer, from a staff wellbeing perspective, employers should take steps to prevent harassment of staff by service users and members of the public.

What to take away

Culture change is a priority for many organisations. We suggest that training and education on how to deal with violence and harassment at work should form part of the culture change piece creating a supportive workplace and improving staff well-being.

It is vital that organisations regularly monitor and review their violence at work policies, violence prevention strategies and procedures to ensure they are effective.

Under-reporting is also an issue, with staff in certain roles accepting that violence, aggression and abuse by service users and members of the public is ‘part of the job’. Changing this mind-set is key to enable employers to assess accurately the scale of the problem. It is only once employers are satisfied that violence and assaults are being consistently reported that an analysis can take place to check for patterns and identify the right areas on which to focus efforts.

How Capsticks can help?

Capsticks supports employers in meeting both their equity, diversity and inclusivity (EDI) and health and safety obligations through drafting policies, codes of conduct and delivering training at all levels. We also support employers in dealing with any complaints that may arise by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims.

If you would like access to advice, training or need further guidance on EDI and/or health and safety in the workplace (either generally or in relation to a specific case) please contact Raj Basi, Nicola Green or Alistair Kernohan.