Last month we looked at the case of Mohamud v WM Morrison Supermarkets Plc, which dealt with whether an employer was vicariously liable for an employee's unprovoked attack on a customer. Mr Mohamud had visited a petrol station operated by the supermarket in 2008 and after making an innocent request of the kiosk operator, was subjected to racist abuse, and then to a violent and unprovoked assault.
In the Mohamud case the Court of Appeal found that the employer was not liable for its employee's actions. Although the unprovoked nature of the attack raises a number of issues for employers in regard to managing staff, it is also worth considering whether the situation would have been different if the situation was reversed and the attacker had been a member of the public. If Mr. Mohamud had been the aggressor, to what extent could the employer of the victim be held accountable for Mr Mohamud's actions?
The risk of violence or harassment from a third party can potentially affect any workplace. However, certain sectors (such as retail) are at higher risk given the increased level of face to face contact with the general public. So what should an employer do in order to protect its employees and to ensure that if an individual is harmed, it is not held accountable?
An employer's obligations
1. Health and safety
An employer has a duty to take reasonable care of the health, safety and welfare of its employees whilst they are at work. The employer must also take reasonable steps to provide a safe workplace and a safe system of work. These duties will extend to cover any risk of violence which an employee may face in the workplace, encompassing any acts which affect the physical or the mental wellbeing of the employee. Employers will therefore have to consider not only physical acts against an employee but also psychological and/or sexual acts.
The responsibility to take care of the health and safety of employees arises from a number of sources:
- Under the tort of negligence which imposes an obligation not to breach the duty of care which is owed by an employer to an employee
- As an implied term of the contract of employment
- Under the Health and Safety at Work etc Act 1974 which sets out that employers are required to provide, as far as reasonably practicable, a safe working environment and to conduct risk assessments
- The Management of Health and Safety at Work Regulations 1999, which imposes further obligations on employers in respect of employee safety
The Equality Act 2010 (the Equality Act) sets out rules, in addition to those responsibilities set out above, which would render employers liable in certain circumstances for the harassment of employees by third parties. These rules were repealed on 1 October 2013. However, even though the rules relating specifically to third party harassment are no longer in force, employees may still attempt to make a claim under the general harassment provisions in the Equality Act (for more information please see our article Third party harassment – gone but not forgotten). These provisions set out that it is unlawful harassment for a person to engage in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating the other's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. However, whether an employee can claim that an employer's inaction when dealing with a third-party's conduct amounts to harassment is not entirely certain.
Whilst uncertainty surrounding third party harassment claims remains, as a matter of good practice, employers should do as much as possible to ensure that where any discriminatory or harassing behaviour is identified, steps are taken to stop such behaviour. Additionally, there may also be a risk that employees could claim indirect discrimination if employers have a practice of not addressing or challenging third party harassment and this puts groups of people at a disadvantage and cannot be objectively justified. As such, employers should not take a relaxed stance regarding discrimination, regardless of the source.
3. Duty of trust and confidence
There is an implied term in contracts of employment that an employer will not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Employees who are subject to third party harassment and/or their employer failing to protect them from it could feasibly argue that the implied term of trust and confidence has been breached and this may entitle them to resign and claim constructive unfair dismissal against their employer.
What should employers do?
All employers (and in particular employers in sectors which regularly deal with members of the public) must keep these obligations at the forefront of their mind. Steps should be put in place in order to ensure that employees are provided with a safe working environment to reduce the risk of incidents occurring in practice as well as the risk of claims being brought. We recommend that employers take the following steps to ensure that they comply with their obligations:
- Assess what the risks are to their employees (including the risk of reasonably foreseeable violence) and decide how significant these risks are
- Decide what to do to prevent or control the risks, and develop a clear management plan to achieve this
- Ensure that appropriate policies relating to workplace safety are in place and that employees are made aware of and understand their responsibilities in relation to these policies. These policies should be regularly reviewed to ensure that they are up to date
- Provide a statement on the organisation's overall approach to preventing and dealing with the risk of violence, which should make it clear that further training is available if required/requested and that support is available to the victim(s)
- If necessary, provide training to employees who deal directly with the public on how to appropriately handle confrontation. Additional training should be provided to managers
- Provide a clear statement to customers and other third parties that harassing or violent behaviour towards staff will not be tolerated. Staff should be encouraged to report any incidents of such behaviour to their managers. Employees who may experience abusive behaviour should be advised to keep a diary of all incidents (and possible witnesses) and copies of anything that is relevant
- If customers or other third parties frequently breach the guidance the employer should consider putting in place additional measures to protect employees, for example banning violent customers or employing security personnel. Staff could also, with their consent, be redeployed if they are experiencing problems
- Treat any grievances raised by employees seriously, deal with them promptly and ensure that steps are taken to resolve potential risks which are brought to the employer's attention as a result of grievances
Although the duty to provide a safe working environment rests with the employer, the employees themselves play an important role in preventing violence in the workplace. An employer should therefore involve employees (and if relevant, trade unions) as much as possible when looking to put in place suitable protections.
What if the employer fails to comply with its obligations to provide a safe working environment?
An employee who is injured at work could bring a negligence claim if they can show that they have suffered a physical or psychological injury as a result of an employer's failure to comply with health and safety legislation and its duty of care. Although the employee may be able to bring a claim directly against the individual who caused them harm they may look to claim against their employer as the employer is likely to have greater resources to provide compensation to the employee.
As highlighted above, an employee may resign and claim constructive unfair dismissal and/or bring claims under the Equality Act (for harassment and/or for indirect discrimination).
Even if an employer's failure to provide a safe working environment does not manifest itself as a claim against the employer, an unsafe (or perceived unsafe) working environment may lead to greater absences and reduced productivity. It will also do little for staff morale and may hinder recruitment. As is always the case with employee relations, the emotions and perceptions of an employee could be an important factor in determining how they approach litigation (or if they choose to do so at all). If they feel that nothing has been done by the employer to protect their safety, they are more likely to feel that they have been treated poorly. Although an employer may be able to show that it took all reasonable steps to protect its employees, the most advantageous position is to never have a claim brought against it in the first place. It is therefore very important for staff morale (and the associated problems that will come with poor morale) that employees understand the steps that are being taken and perceive their workplace to be a safe one.
The reoccurring theme set out above is that an employer must take reasonable steps to ensure that an employee has a safe working environment and is kept from harm. Unfortunately, there is nothing that an employer can do to completely guarantee its employees' safety when dealing with third parties. However, by taking a sensible and pragmatic approach to employee safety, employers should be able to show that they have taken such reasonable steps as are necessary in order to minimise the risk of employees coming to harm.
In the event that an employee is injured, then as long as the employer has taken all reasonable steps to protect their safety, the employer will be in a strong position to defend itself against any claims made by the employee.
We would be happy to discuss steps to take to manage this issue. For more information please contact us.