The legislative basis protecting employees exposed to aggressive or violent behaviour.

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Context.

Aggression and violence is a significant hazard in a variety of workplaces. The Health and Safety Authority (HSA) reports exposure to this behaviour is particularly significant in the public sector including public administration, defence, social security and the health and social care sectors, table 1.

Table 1. Sectors involved in workplace violence in 2009

Unsurprisingly each of the sectors detailed above involve frequent interactions between employees and members of the public thereby increasing the likelihood of exposure to hazardous behaviour. A review compiled by the Health and Safety Authority in 2015 listed ‘Aggression, shock, fright or violence’ as the second highest category of reported incident in the healthcare sector. For the purposes of this project I am examining how the legislation protects employees exposed to violent incidents in the course of their work activities.

Legislation.

To begin with, the Safety Health and Welfare at Work (SHWW) Act 2005 underpins all safety considerations in the workplace. It is wide ranging. When it comes to an identified workplace hazard, we must review the SHWW Act in order to understand the relevant sections. In the case of employees who may be exposed to violence during the course of their work several sections have explicit relevance.

All sections of Part 2, Chapter 1 are important in relation to the hazard of violence. A safe system of work must be designed in order to minimise the risk posed by violent behaviour. Information in relation to this must be available for employees in the form of risk assessments, policy and procedure documents. Employees must be trained in how to respond to the threat of violence and a detailed emergency plan must exist to minimise harm where there is immediate danger. In addition other persons who are not employees, such as patients in the waiting area of a hospital emergency department, must be considered and their safety ensured in so far as is reasonably practicable.

Part 3 of the SHWW Act progresses in general terms the actions to be taken by employers. Should the potential for violence be present in the course of employee duties, this should be identified as a hazard, risk assessed an incorporated into the organisations safety statement. Violence due to its nature and unpredictability, can be a hazard that is difficult to assess in any given workplace. As such part 4 section 26 of the SHWW Act is particularly relevant. Consulting employees who directly face violent behaviour or behaviour that signals the potential for violence is vital to inform the preventative measures taken.

The Safety Health and Welfare at Work (General Application) Regulations 2007 details further the measures that must be taken by employers to reduce risk in relation to a variety of key factors including the workplace, use of work equipment, personal protective equipment etc. There is no direct reference to violence in any section of the 2007 Regulations nor has any section direct relevance to protecting the employees when faced with violence. This is an area where there may be potential for enhancement. As part of the Work Environment Act in 1993, Sweden introduced specific regulations that detailed obligations on employers to prevent and respond to violence at work. Of particular note is the emphasis on organisational systems of work that emphasise preventing violence rather than the onus placed on the individual staff member responding appropriately to violent acts against them (Chappell and Di Martino, 2006). Should an employee come to physical harm as a result of violence the requirements set out in the SHWW Regulations Part 7 Chapter 2 – First Aid are important to help minimise harm associated. This is of limited benefit to the employee, as harm has been done and at worst communicates a tolerance of violence. In addition Part 6 Sensitive Risk Groups and in particular Chapter 2 – Protection of Pregnant, Post Natal and Breastfeeding Employees is relevant. Female staff outnumber male staff in the healthcare sector by approximately 4 to 1 and in the nursing profession this rises to more than 10 to 1 (CSO, 2016). With exposure to violence being second highest in the healthcare sector the risk posed by violence in relation to pregnant employees must be very carefully assessed and protected against as detailed in sections 149 & 150.

Case examples.

Several civil cases taken offer some insights when violence results in serious harm to the employee. A case in which a nightclub doorman was stabbed whilst at work, alleged several failings on behalf of the employers (Independent.ie, 2013) . These included, lacking an emergency ability to quickly close the premises when there is imminent danger, insufficient staff to respond to acts of violence, the lack of a clear system to call Gardai in an emergency and a failure of the employers to properly brief the doorman on a violent incident that occurred several weeks previously. A psychiatric nurse assaulted by one of her patients alleged a failure of protection by the Health Service Executive (HSE) resulting in Post-Traumatic Stress Disorder (PTSD) (Hearld.ie, 2010). In both instances the cases were settled without requiring a judgement. As a result we cannot draw firm conclusions as to whether or not the employer in each instance complied with the safety legislation. It does remain somewhat informative in terms of the alleged failures and the relevant sections of the SHWW Act as a result. Common to both cases was the claim of PTSD resulting from the violent attacks. The Book of Quantum details compensation for all matters of physical injury when personal injury claims are taken but omits psychological trauma (Personal Injuries Assessment Board, 2016). Therefore this guide is only relevant in violent episodes resulting in physical injury such as the doorman stabbing and associated lower limb pain described. My own experience is that the physical injuries associated with violence at work have been described as easier to move on from but the psychological distress proves longer lasting. The recently adopted Personal Injury Guidelines detail how to judge psychiatric damage. Most notably they set out clearly that incidents causing distress or upset do not attract compensation only those which result in a recognised psychiatric disorder and in particular PTSD. This I feel describes the limits of legislation in protecting employees who face violence at work. Defining distress and levels from minor to severe would pose obvious difficulties for the courts to judge. Indeed defining PTSD accurately is not without it’s own difficulties. This area of the legislation is particularly important in relation to violence experienced at work and it will be very interesting and informative to see how these new judicial guidelines are interpreted in the coming years.

Thus far the focus has been on safety legislation protecting the employee, but we can also broaden the scope to include criminal law. Violent acts can be criminal in nature and be prosecuted as such. Acting as a deterrent, specific importance is placed on violence directed towards members of the frontline emergency services such as the Gardai, Healthcare staff and Firefighters. Section 185 of the Criminal Justice Act 2006 includes changes that strengthen the protection for emergency workers and in addition prosecution may be taken under the Non-Fatal Offences Against the Person Act 1997 for serious assaults against emergency workers. There are numerous examples of persons prosecuted under such legislation for violent acts carried out on emergency workers. It is difficult to know if this deterrent is effective and if assaults against emergency workers are reduced as a result of it’s existence. Indeed as before it is possible that we are coming to the limits of legislation in protecting employees in this manner. During parliamentary questioning in 2014, Minister for Justice Frances Fitzgerald acknowledged the seriousness of violence acted upon emergency workers but indicated that she had no plans to change the existing laws protecting against such attacks. This is illustrated in the same article where the Chairman of the Irish Fire and Emergency Services Association, John Kidd, alleged that should one of their members ‘get injured, they risk losing out financially if they do not recover quickly’. Whether or not that is the case in reality, the SHWW Act 2005, Part 4 section 27 details protections against penalisation of that described by Kidd. It is difficult to imagine how the legislation could be altered to improve this protection.

Guidelines.

The Health and Safety Authority has published several guides to assist employers interpret and translate legislation into practice. These guidelines are based on the requirements described earlier in the SHWW Act 2005 and the SHWW (General Application) Regulations 2007 and can be interpreted as the requirements of legislation when put into practice. The 2007 revised publication of ‘Violence at Work’ sets out broad principles of risk assessment and prevention strategies relevant to all workplaces. Guidelines on risk factors including the perpetrator, the staff member and the environment are detailed. Straightforward safeguards are set out along with the objectives of training performed along with post-incident support and reporting guidelines. All of the guidelines set out are a direct reflection of the requirements of legalisation previously described. Within the health service in particular, guidelines have been expanded to reflect the complex range of services provided and needs of persons using the service who may become violent (McKenna, 2008). Although not directly legislative, these documents reflect the implementation of a preventative approach described by legislation and therefore are examples of how the legislation protects employees who encounter violence at work.

Should an employee feel that an employer is not fulfilling the obligations with regard to protecting against violence, the employee may report this matter to the Health and Safety Authority. Parts 5-8 of the SHWW Act 2005 gives the HSA the requisite powers to investigate complaints made to them. In particular Part 6 enables the HSA to compel employers to provide information on their approaches to protect against violence. This could also include evidence of incident reports having been documented in respect of a violent occurrence and the mitigating actions taken or not taken as the case may be. It is interesting that inspection records are only made available upon request through freedom of information. In comparison, regulatory bodies such as the Health Information Quality Authority (HIQA) publish all inspection records and are openly accessible via their website. I understand why publication cannot take place when criminal investigations are ongoing. However where that issue does not arise, there may be many benefits to a more accessible and transparent publication policy. It would add an incentive that would drive employers to improve safety. Specifically in relation to violence it would also allow prospective employees view an organisations track record in those professions with a high risk of violence.

Conclusion.

In conclusion, the focus of this project was the hazard of violent behaviour with a further attempt to narrow the scope by examining relevant legislative protection only. On initial consideration during the proposal phase this seemed like a relatively small area to examine. Now having considered the topic, it is clear that all aspects of safety legislation are always important in relation to violence, or any given hazard for that matter. Further, criminal legislation beyond safety also influences and protects employees faced with violence in their workplace. It is the coming together of the whole legislative system that ultimately protects the employee. This places quite a burden of responsibility on employers in order to protect employees and others from violent behaviour. The Health and Safety Authority facilitates the implementation of mitigating measures by translating the legislation into more specific guidelines for employers and managers. The reviews and improvements to these guidelines in relation to violence is an reflection of how the legislation itself is being challenged and improved. Scope for progress is the potential for specific regulations in relation to workplace violence to be included in the SHWW (General Application) Regulations 2007 as is the case in Sweden. Another possibility is easier access to inspection information via the HSA. With the majority common law cases involving workplace violence being settled before judgement, it would be really informative to allow open access to safety inspectors findings following inspection. The hazard of violence in the workplace is wide ranging and complex. So too the legislation protecting employees is far reaching, with the whole being more important than the sum of each part. Much like a safety cycle in any given workplace, the legislation is in a constant state of being challenged, reviewed and amended to improve protection of employees and others from the hazard of workplace violence.

References

Central Statistics Office. 2021. Women and Men in Ireland 2016. Health Service Personnel by Grade Category. Viewed on 14^th April 2021. Available at:

https://www.cso.ie/en/releasesandpublications/ep/p-wamii/womenandmeninireland2016/health/

Chappell, D. and Di Martino, V. 2006. Violence at work. Third edition. International Labour Organization. Viewed on 14th April 2021. Available at: https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_publ_9221108406_en.pdf

Department of Justice. 2006. New Law greatly strengthens protection for Emergency Workers. Viewed on 14^th April 2021. Available at: http://www.justice.ie/en/JELR/Pages/PR07000924

Health and Safety Authority, 2015. Healthcare Sector (NACE Q) Illness and Injury Statistics 2015. Viewed on 03^rd February 2021. Available at: https://www.hsa.ie/eng/Your_Industry/Healthcare_Sector/Healthcare_Illness_and_Injury_Statistics/

Health and Safety Authority. 2021. Recording Inspections. Viewed on 14^th April 2021. Available at:

https://www.hsa.ie/eng/Topics/Inspections/enforcement/Recording_Inspections/

Health and Safety Authority, 2021. Violence at Work viewed on 13th January 2021. Available at: https://www.hsa.ie/eng/Topics/Violence_at_Work/Violence_at_Work.html

Herald.ie. 2010. Nurse settles HSE row over retiring early. Viewed on 14th April 2021. Available at: https://www.independent.ie/regionals/herald/news/courts/nurse-settles-hse-row-over-retiring-early-27955162.html

Independent.ie. 2013. Doorman who was stabbed in the back when confronted by 15-strong gang settles case. Viewed on 14th April 2021. Available at: https://www.independent.ie/irish-news/courts/doorman-who-was-stabbed-in-the-back-when-confronted-by-15-strong-gang-settles-case-29666228.html

Irishstatutebook.ie. 2005. Safety, Health And Welfare At Work Act 2005. Available at: http://www.irishstatutebook.ie/eli/2005/act/10/enacted/en/html

Irishstatutebook.ie. 2007. S.I. No. 299/2007 – Safety, Health and Welfare at Work (General Application) Regulations 2007. Available at: http://www.irishstatutebook.ie/eli/2007/si/299/made/en/print

Judicial Council. 2021. Personal Injuries Guidelines. The Judicial Council. Viewed on 14^th April 2021. Available at: https://judicialcouncil.ie/assets/uploads/documents/Personal%20Injuries%20Guidelines.pdf

McKenna, 2008. Linking Service and Safety – Together Creating Safer Places of Work, Health Service Executive. Viewed on 14th April 2021. Available at: https://www.hse.ie/eng/staff/resources/hrstrategiesreports/linking-service-safety.pdf

Personal Injuries Assessment Board. 2016. General Guidelines as to the amounts that may be awarded or assessed in Personal Injury Claims – Book of Quantum. Personal Injuries Assessment Board. Published in Dublin. Viewed on 14^th April 2021. Available at: https://www.piab.ie/eng/news-publications/Corporate-publications/General%20Guidelines%20-%20Revised%20October%202016.pdf

thejournal.ie. 2014. Attacks on emergency services ‘utterly unacceptable’, but protective laws won’t be improved. Viewed on 14th April 2021. Available at:

https://www.thejournal.ie/attacks-on-emergency-services-personnel-fire-ambulance-gardai-1744513-Oct2014/