Health and Safety
Executive / Commission
Local authority circulars
To: Directors of Environmental Health/ Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils.
For the attention of: Environmental Services /Trading Standards /Fire Authorities /Other
This circular gives advice to local authority enforcement officers
| Health and Safety Executive | Operational Circular |
| Field Operations Directorate | OC 213/2 |
| Review Date | 20/08/2011 | Open Government Status | Fully Open |
|---|---|---|---|
| Version No & Date | 1: 20/08/2001 LA | Author Unit/Section | FOD Health Unit |
1 The British Crime Survey report Violence at work - findings from the British Crime Survey showed that in England and Wales 275 000 workers were assaulted in 1997 and 395 000 were threatened. Statistics on work-related violence in Scotland appear to reflect the pattern in England and Wales.
2 The full report was funded by HSE and published jointly with the Home Office in 1999. It shows that violence is a significant issue for workers in many HSE enforced sectors and particularly for security guards; nurses; health care professionals (especially medical practitioners); social workers and probation officers; public transport workers (especially taxi drivers); welfare, community and youth workers; and national and local government administrators, eg Benefit Agency staff. High risk groups were found to be primarily those where staff work in direct contact with the public.
3 The report also suggests that those working in small or medium sized establishments and those who work during the evening or night are likely to face a high risk.
4 HSE's generic guidance on work-related violence is contained in leaflet IND(G)69 (Rev): Violence at work - a guide for employers published in October 1996. This sets out a framework for managing violence as a health and safety risk.
5 Guidance on reporting acts of physical violence to workers is set out in HSE booklet L73: A guide to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.
6 Priced guidance on work-related violence in specific occupational sectors has been available from HSE since 1989 and includes detailed guidance for the health services and education sectors (see Appendix 1).
7 An employer's responsibilities under HSW Act s.2 includes protecting staff from the risks associated with work-related violence so far as is reasonably practicable.
8 Responsibilities may also arise under relevant statutory provisions of the HSW Act, eg the Management of Health and Safety at Work Regulations 1999 (MHSWR). In particular, employers may need to consider risks from work-related violence when they are making risk assessments (Reg.3), and when establishing and reviewing their health and safety arrangements (Reg.5).
9 Situations where violence may occur between non-employees who are 'clients' of the employer (prisoners, patients in mental health institutions, etc) may also give rise to duties under HSW Act and MHSWR, but only in so far as the violence is likely to put employees at risk.
10 Occasionally horseplay amongst employees may result in violent acts that are in scope of the HSW Act s.7.
11 The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR 95) define accidents as including 'acts of non-consensual physical violence'. Employers are required to report such accidents to the enforcing authority if they result in death, major injury or if they result in the worker being away from work or unable to do the full range of their duties for more than 3 days.
12 Only physical injuries which result from acts of non-consensual violence to workers qualify as accidents for the purposes of RIDDOR 95. Accidents to non-workers and absence from work due to causes that are not physical, eg illness resulting from verbal abuse, or psychological conditions arising from physical assault, are not reportable.
13 The fact that a particular incident is not reportable under RIDDOR 95 does not mean that it is outside the scope of health and safety legislation. The employer may still have duties under HSW Act and MHSWR.
14 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. The addresses of these organisations are given at Appendix 2.
15 HSE has no formal agreements with the EOC or CRE on demarcation but inspectors should refer cases of sexual or racial abuse to these bodies if it is clear that they do not result primarily from failures in health and safety management.
16 In England and Wales the Public Order Act 1986 (PO Act) covers the use of threatening, abusive or insulting behaviour that is likely to cause harassment, alarm or distress as well as physical assault. It is enforced by the police. [In Scotland such behaviour is generally covered by the common law offence of 'breach of the peace']. The PO Act also only applies after an offence has been committed and cannot be used to require the taking of preventive measures. One implication of this is that whilst police forces expend considerable effort in promoting prevention of such crime, they have no powers to enforce such measures.
17 HSE's most recent definition of violence is set out in HSE leaflet IND(G)69 (Rev) as:
'any incident in which a person is abused, threatened or assaulted in circumstances relating to their work'
This definition supersedes one that was restricted to violent acts by the public. The change was made to align it with the broader criteria for reporting acts of violence contained in RIDDOR 95.
18 The definition includes incidents that involve verbal abuse and threats. A pattern of such incidents may be indicative of a situation where physical violence might also occur. Exposure to threats, verbal abuse, and the fear of these and of physical violence are also recognised stressors with potential to cause ill health (inspectors should refer to OC 202/3 for operational policy on work-related stress).
19 Only incidents that are directly related to work are within the scope of health and safety legislation. Incidents that are personal in nature will not be within scope.
20 An example of an incident directly related to work would be assault of a supervisor by an employee who resented an instruction to work overtime. Another example would be verbal abuse from the relative of a patient to a hospital receptionist because they believed waiting times were excessive.
21 An example of an incident which occurred at work, but which was not related to it, would be assault of a supervisor by an employee because he believes the supervisor has stolen his wallet.
22 Employees travelling between home and their normal place of work, will not be within the scope of health and safety legislation. This will be the case even if they are subject to an assault which is linked to their employment, eg an assault by someone who has a grievance connected with the employee's work. However, inspectors should indicate to employers that taking action to safeguard their employees would be good practice where such risks are significant.
23 However, violence sustained during travel that forms part of legitimate employment will be in scope of health and safety legislation if it is directly related to work. Examples would be assault of social workers whilst removing a child from its home or of lorry drivers in the course of a hijack.
24 In certain types of employment violent incidents may feature as a regular and inevitable part of the work because of the need to physically restrain people. This restraint may be used to prevent violence to staff but may also be used to prevent self-harm, or to prevent property being damaged. Employment where restraint techniques are commonly used includes the security industry, police forces, prison service, mental health institutions, education, and social care.
25 In many of these sectors the term 'control and restraint' (C&R) is commonly used. However, this term can have emotive connotations and tends not to be used in social care and education, and especially not in special needs education. In these sectors C&R is seen as being only one of a range of acceptable actions involving physical contact - referred to collectively as 'physical interventions'.
26 The extent to which the use of such physical interventions is justified is a controversial issue in health care, social care, education and the prison/police services.
27 Specific reference is made to restraint techniques in the arrangements for liaison between HSE and the Police Complaints Authority. The protocol document indicates that HSE inspectors will not seek to investigate incidents where:
(1) the main issue is that of reasonable force being used in dealing with a member of the public; or
(2) whether the use of equipment for self-defence or deterrence, arrest or restraint has been appropriate in the circumstances; or
(3) where there have been third party injuries as a result.
28 The question as to whether the use of C&R is justified in particular circumstances is usually a matter for professional or clinical judgement rather than a health and safety issue. However, restraint should usually be a last resort for managing violence to staff. Inspectors should normally concentrate on ensuring that the employer has taken appropriate steps to minimise any risks to employees that might arise from the physical intervention.
29 These steps will include ensuring that appropriate systems of work are in place (including appropriate policies and procedures) to enable the safe application of C&R.
30 In situations where the client is known, it would be appropriate for the employer to clearly state what form of restraint should be used and, if necessary, what forms should not be used.
31 Where patients are involved, the employer should carry out assessment of their physical needs and limitations and record the significant findings. In certain situations, eg hospital accident and emergency departments, the previous case history may not be known, and staff should be trained to know how to monitor the patient and what to do in the event of distress being noted.
32 Where staff are expected to use C&R techniques the employer should assess their capabilities and provide appropriate training. HSE is not able to endorse particular training accreditation schemes. However, the Department of Health, the Department for Education and Employment, and various other government departments are currently heavily involved in developing accredited training standards.
33 Inspectors who have concerns about the training in C&R techniques provided by particular employers should seek advice from the relevant FOD sector or from FOD Health Unit.
34 Concern about the extent of violence to social care workers has resulted in the establishment of a National Task Force on Violence Against Social Care Staff under the auspices of the Department of Health. Full details are available on the Internet at National Task Force on Violence.
35 The task force has developed a national action plan and inspectors dealing with this sector are advised to be conversant with the main proposals. The website contains a self audit tool for use by employers and an employee checklist.
36 Both HSE inspectors and police officers have an interest in the investigation of incidents of violence involving physical injury. Police lines of inquiry will be concentrated on the incident itself whereas HSE's main interest will be in failures to manage health and safety issues, but often there will be some overlap.
37 Where work-related violence results in death, inspectors in England and Wales should refer to OC 165/8 Work-related deaths: liaison with the police and Crown Prosecution Service. This describes the liaison protocol that has been agreed between HSE, the Association of Chief Police Officers and the Crown Prosecution Service for dealing with such incidents.
38 Local arrangements for HSE/police liaison should be used to discuss cooperation at investigations of work-related violence and also crime prevention. HSE's interest in crime prevention issues will generally be limited to situations where employee safety is involved.
39 Effective liaison will help ensure that when both HSE and the police are involved in an incident everyone is clear about their respective interests and responsibilities and investigations can proceed with maximum cooperation and minimum conflict.
40 In England and Wales, police and local authorities have a statutory duty under the Crime and Disorder Act 1998 (CDA) to establish local crime and disorder partnerships. These partnerships are tasked with developing strategies to tackle crime and may cooperate with appropriate bodies including HSE.
41 All police forces have officers who are specially trained in building design aspects of crime prevention. They are usually given the title architectural liaison officer but in some forces they are referred to as crime prevention design advisers. They can be a useful source of expertise for employers but their recommendations may not always be enforceable under health and safety legislation.
42 OC 401/2 Construction work subject to protest action gives advice relating to violent incidents involving not only the police but contractors' employees, security personnel, sheriff's officers and bailiffs. The principles described will be generally applicable to other situations involving protest action.
43 Some employment situations may expose employees to persons with a known record of violent behaviour. Part of the employer's strategy for controlling the risk of violence may be to operate a system which alerts their staff to this risk, eg by marking client records. This is a legitimate tactic which should be encouraged.
44 Inspectors should be aware that such systems are subject to the Data Protection Act 1998 (DPA) but in practice this is not a significant problem because for violent acts the DPA requirements are significantly amended by CDA.
45 In general terms CDA Section 115 provides a legal power for any person to lawfully disclose information to a chief police officer, police authority, local authority, probation service or health authority (or persons acting on their behalf). Such disclosure should only made where there is thought to be a substantial chance of violence occurring. However, where this applies any duty of confidentiality under DPA will normally be overcome. The Human Rights Act might also need to be considered when making a disclosure.
46 There needs to be clear and justifiable reason for disclosure and the information must be accurate, relevant, kept securely and not held longer than is necessary. Detailed guidance on how this would apply to the marking of files has been provided by the Information Commissioner. This guidance is attached as Appendix 3 and can be freely copied to parties outside HSE.
47 Inspectors should deal with work-related violence as a legitimate health and safety issue when assessing compliance with the HSW Act and relevant statutory provisions and when determining inspection ratings.
48 In particular, when carrying out investigations and preventive inspections, they should ensure that work-related violence has been taken into account in the risk assessment process and that appropriate control measures have been taken in all cases where it is a relevant hazard.
49 It is likely to be a relevant hazard where the work activities involve direct contact with the public, giving a service, health and social services, education, cash transactions, delivery/collection, and representing authority in addition to the sectors listed at para 2.
50 In larger organisations it will also be important for inspectors to check that arrangements are in place for the management of the risk from work-related violence, in accordance with the Management of Health and Safety at Work Regulations reg.5.
51 The fact that an incident may be subject to a police investigation should not preclude a parallel HSE investigation if there is reason to believe that underlying management failures could have contributed. However, the HSE investigation should focus on the management of violence rather than duplicate the police line of enquiry.
52 Inspectors should be alert to the possibility that victims and witnesses may be affected by post incident trauma and should adopt a sympathetic approach when conducting interviews. Where investigations parallel those being undertaken by the police, it may be appropriate to take HSW Act s.20 statements at the same time as the police take their statements. This may lessen the stress on traumatised witnesses providing that care is taken to ensure the arrangement does not appear intimidating.
53 If inspectors discover employers who are using novel control strategies, or have carried out innovative work in this area, they should send details to FOD Health Unit and the relevant FOD sector so that this information can be considered for possible inclusion in published guidance.
54 Details of inspection experience that may be useful to other inspectors should be reported in the same way so that it can be considered for inclusion in future instructions and training.
55 The feasibility of establishing benchmarks for the control of violence to employees by members of the public is under investigation. In this context, the term 'members of the public' includes customers, prisoners, patients, pupils and their relatives.
56 In the meantime, inspectors should seek advice from the relevant FOD sector regarding the control measures that are reasonably practicable in particular circumstances. Local authority enforcement officers should seek advice via the local ELO.
1 IND(G)69 (Rev): Violence at work: a guide for employers, HSE Books (single copies free) 1997.
2 HS(G)133: Preventing violence to retail staff, HSE Books, 1995, ISBN: 0 7176 0891 3.
3 HS(G)100 Prevention of violence to staff in banks and building societies, HSE Books, 1993, ISBN: 0 7176 0683 X.
4 Education Service Advisory Committee booklet: Violence in the education sector, HSE Books, 1997, ISBN: 0 7176 1293 7.
5 Health Service Advisory Committee booklet: Violence and aggression to staff in health services. Guidance on assessment and management, HSE Books, 1997, ISBN: 0 7176 1466 2.
6 HSE Entertainment Sheet No 2: Violence to workers in broadcasting.
7 Violence at work: British Crime Survey: Home Office (by Tracy Budd)
8 Protecting Bus Crews, obtainable from the Department of Environment, Transport and the Regions (DETR).
Equal Opportunities Commission
Overseas House
Quay street
Manchester
M3 3HN
0161 833 9244
Commission for Racial Equality
Elliot House
10/12 Allington Street
London
SW1E 5EH
0207 828 7022
(Extracted from information supplied by the Information Commissioner)
1 The Data Protection Act does not define which types of data may or may not be held and processed. What is required is that the 'Data User' correctly registers the information that is being held and that it is held and processed in accordance with the Eight Principles of the Data Protection Act. Each of the Principles apply when considering the use of markers. Detailed guidance on each of the Principles can be found in Chapter 3 of the Commissioner's booklet 'The Data Protection Act 1998 - An Introduction'.
2 It is possible to hold a record identifying that an individual who is likely to interface with an employee has in the past used violence. However, it is important that procedures and policies are in place to ensure that this information is governed by security measures which prohibit unauthorised access, disclosure, alteration, loss and destruction in accordance with the Seventh Data Protection Principle.
3 Employees who are likely to interface with the individual, eg who are likely to interview or visit the individual, should have access to this information but it should not be accessible to other people in the organisation who do not need to know this information.
4 For example, the information should not be emblazoned all over the individual's records, in such a way as could be seen by others who have no legitimate reason to be aware of the risk. It will be necessary to ensure that access to this information is limited, eg by marking off a part of the general record for restricted access only, or by holding a centralised register of people who have a history of violence against the organisation's employees.
5 Similarly the system for administering the records needs to be such that records are only marked when there are clear and justifiable reasons for doing so. It would not be acceptable to allow any member of staff to make an entry on a person's records simply on their own volition. The system must operate against defined criteria which cover the degree of violence which must be demonstrated before a record is held. The decision whether to make a record must be made by an employee of a senior grade and any proposed entry into a person's records or a register must be approved by that person.
6 It is important to distinguish between a situation where an individual has assaulted or threatened an employee and a situation where there is a rumour that a person is violent. If employers wish to store data based on an opinion, speculation or information received from a third party, then it is very important that it is made clear to anyone who might view the record that what is recorded is simply 'hearsay' received from a third party, and does not purport to be a record of fact. It should be borne in mind that the individual has a legal right of access, using the Sixth Data Protection Principle, to receive a copy of the data held about them and a right to compensation if it is inaccurate. If the speculation turned out to be unfounded it is also possible that what was recorded could amount to unlawful processing within the terms of the First Data Protection Principle.
7 It is not difficult to envisage a situation where a normally calm, non-aggressive person is suffering stress, say because of a personal tragedy or illness, and then threatens an employee. If the person's record was marked noting simply that he or she threatened the employee, and the details of the personal tragedy or illness explaining the incident were not also recorded, it is possible that this could amount to a breach of Principle.
8 In accordance with the Third Data Protection Principle, the information must not only be relevant and not excessive, it must also be adequate and kept up to date. It is suggested that a sensible approach, when considering adopting the use of some sort of 'violence marker', would be to ensure that the person responsible for making the note or compiling the register includes a brief description of the actual incident. This will be of assistance if there is any dispute as to the accuracy of the data, the relevance or whether the data could be seen as excessive.
9 The Fifth Data Protection Principle requires that information 'shall not be kept for longer than is necessary'. There is no definition as to how long is 'necessary' in this context but it is important to have policies and procedures in place to ensure that the records are reviewed regularly and data removed where appropriate.
10 The fact that a person has been violent once should not be recorded indefinitely on their records. An annual review of records is recommended to make sure that any markers are kept up-to-date in accordance with the Fourth Data Protection Principle.