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March 7, 2017

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Employee violence and civil litigation

By Walter Brennan

In an increasingly litigious workplace, not only can employers be sued for sacking an employee without good reason, they can also find themselves having to defend a failure to dismiss member of staff.

As civil employee litigation grows throughout the UK, there is still a poorly acknowledged problem with workplace violence. The Health and Safety Executive define violence as: ‘any incident where staff are abused, threatened or assaulted in circumstances related to their work’.

This definition should also be used to protect employees when they are bullied in the workplace.

Findings from the Crime Survey for England and Wales (CSEW 2014/15) found there were an estimated 569,000 incidents of violence at work, comprising 308,000 assaults and 261,000 threats

Strangers were the offenders in over half of cases of workplace violence, and among the 46% of incidents where the offender was known, the offenders were most likely to be clients or a member of the public known through work.

A survey of 181 employees who had been threatened with physical violence found that less than 40% them (70) had reported the incident formally (in writing), citing reasons such as seeing abuse as part of their job or feeling pessimistic about anything being done about the incident.

Bullying is one example of workplace violence where many victims believe that to complain is likely to result in negative outcomes (further bullying or losing one’s employment).

Aggressive, violent or abusive employees are health hazards to those who may come into contact with them on a daily basis, potentially causing physical or psychological injury, stress, demoralisation, sickness and impair performance.

In March 2016 the Supreme Court held Wm. Morrison Supermarkets plc, was vicariously liable for an assault by one of its employees on a customer.

Mr Mohamud was at the petrol station of a Morrison Supermarket in Birmingham and on his way to an event in London with some friends who were sat in his car. While at the petrol station he asked whether or not he could print some documents from a USB stick which he had on him.

Mr Khan, an employee of Morrison’s was one of two staff present and responded to Mr Mohamud with foul and racist language to get him to leave, which Mr Mohamud eventually did. It was accepted that this was a completely unprovoked verbal attack.

Unfortunately, before Mr Mohamud could get in his car and drive off, Mr Khan ran outside and began to physically attack Mr Mohamud. He suffered very serious head injuries and then sought to sue Morrison’s on behalf of Mr Khan.

So, just who are we employing?

A sacked McDonald’s worker who stabbed his former boss to death in a “horrific, frenzied, ferocious and crazed attack” in revenge for losing his job was jailed for life in 2006

Shane Freer, 21, killed Jackie Marshall, 56, with an eight-inch hunting knife, punching her and lunging at her in front of customers who had been dining at a Chichester branch of the fast food chain in 2005.

The court heard that a week before the attack Freer had been suspended for hitting a girl who had been firing pieces of carrot and wet napkin at him through a straw.

Freer had no previous convictions but had once hit a teacher and taken a knife to school to slash the throat of a girl who had teased him. Mr Russell-Flint said: “The psychiatrists concluded that the defendant poses a high risk to others.”

Could such behaviour have been predicted?

Often the answer to such a question is, ‘no’. However employers are placing themselves in potential culpability, by failing to take reasonable action and completing comprehensive background checks allied to risk assessments when recruiting new employees or staff who may have been displaying behaviour that is unacceptable or simply dangerous towards clients, colleagues, or customers.

There are questions that should be asked at interviews, yet rarely are for fear of breaching human rights, employment law or because the interviewer did not feel confident about asking them.

As a trainer in risk assessment, I ask employers how many times they have employed a person and within weeks, serious and worrying concerns arise about their behaviour, attitude or quality of work?

During a study day, 31 managers were asked the same question. Nineteen had employed or was currently working with a staff member who had turned out to be hostile, aggressive and threatening. The same number agreed that they also failed to go the extra yard when finding out as much as possible about a candidate before they were offered the job.

I ask a further question: ‘Imagine if you needed a babysitter to care for your two young children and you needed to employ someone you didn’t know, what would you ask the person?’

I can predict that you want to know that the person is kind, safe, competent and honest. You would probably leave no stone unturned in pursuit of finding the right person to ensure the safety of your children.

But how thoroughly are references scrutinised? The NHS had, for many years a standard practice of giving bad employees an excellent reference in a bid to get rid of them!

Such practice has decreased significantly, nonetheless when verifying references do we ask:

  • “Did the employee hold the position he claimed to have held?
  • “Why did they leave?”
  • “Was there a problem with aggression or violence whilst working there?”
  • And finally but most importantly: “Would you hire him again?”

It’s worth remembering that we can also glean much from what is not said, such as, “ Legally I cannot say any more…”

Why are we not applying the same standard in the workplace?

The following 12 questions, while uncomfortable, must be seriously considered. Employing someone is a high-risk activity, and the more information you possess about them, the more likely you are to make the right decision.

  1. How does your member of staff cope with stressful situations?
  2. How do they function as a member of a team?
  3. Has the person ever threatened violence against colleagues?
  4. Have they ever been violent towards a colleague?
  5. Have they ever been suspended or sacked?
  6. How do they react when their performance is criticised by their manager?
  7. How would they do if they were suspended pending an investigation?
  8. What would they do if they were made redundant?
  9. What would they do if they were dismissed?
  10. How do they react to change?
  11. Is alcohol/drugs a significant part of the person’s life?
  12. Does the person have a good work history?

Trying to profile the potentially violent employee

One of the best predictors of future behaviour is past behaviour. Research has indicated that a history of violence tends to be expressed with a growth in potential for further violence.

Perpetrators of violence tend to have a traceable history of disputes, interpersonal conflict and often failure, allied to very poor coping skills when under pressure.

Bearing a grudge or believing that they are the victims in all of their conflict is usually a telling sign of how the person views the world and workplace.

Often the labels ‘psychopath’ or ‘sociopath’ have been applied to colleagues who have demonstrated startling levels of aggression, deceit and/or callousness.

The Diagnostic Statistical Manual 5, the psychiatric ‘bible’ classifies such features under the criteria of ‘Anti-social Personality Disorder’, also identifying a lack of empathy, intimacy and being ego-centric – the world revolves around them.

Other diagnostic features may include:

  • Highly manipulative behaviour
  • Risk taking or engagement in dangerous, life threatening or self damaging behaviour without considering the consequences.
  • Impulsivity – acting out without a plan or consideration of others
  • Seriously irresponsibility – failure to repay money etc.

Though workplace violence is not restricted to men, the evidence suggests 90% of incidents of workplace violence are perpetrated by men.

In 2002, the FBI identified why things can go wrong. They suggest that a lack of an embedded safety culture can contribute to employees being at risk of violence.

  • One-size-fits-all approach – responses may need to be different for different people and the nature of the infraction
  • Rigidity, inflexibility – having a rigid criteria: e.g. ‘well he’s not hit anybody yet! So there is nothing we can do!’
  • Denial of problem – ‘He’s always been like that, ‘ or ‘His bark is much worse than his bite!’
  • Lack of communication with key parties – people sometimes fail to communicate issues because one party does not perceive the issue to be a problem.
  • Lack of collaboration – departments or managers not speaking about the person or a previous incident
  • Ignoring respect – allowing rudeness to thrive.
  • Lack of clear written policy – ambiguous or out dated policies
  • Lack of careful evaluation of job applicants – Not enough scrutiny
  • No documentation – too often no record of anything having taken place!
  • Lack of awareness of cultural/diversity issues
  • Passing around “bad apples”
  • Lack of an organization-wide commitment to safety – too often the policy is not put into practice.

A recent case I gave expert evidence on was settled 5 days before it was due to go to court.

An injured employee was verbally abused and bullied for years. Her manager and HR department were fully aware of the situation yet did nothing about it.
She received an undisclosed sum. But just how much did it cost her employers?

Not only was the plaintiff and her legal team’s fees paid in full, they also had to pay their own legal costs.

The human costs mount up also:

  • High staff turnover
  • Poor reputation as an employer
  • Low morale
  • Bad working atmosphere
  • Culture of fear
  • Low efficiency
  • High stress levels
  • Risk of it happening again!

Employee dignity matters. Protecting their physical and psychological wellbeing is a health and safety issue. There is also an overwhelming business case to manage bullying and violent employees before its too late.

 

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