OC 213/2 (Revised)
This OC, which cancels and replaces OC 213/2, outlines the key issues for inspection and enforcement in relation to violence at work.
|1 - 4||Background to the Problem|
|5 -12||Relevant Legislation Enforced by HSE|
|13 -16||Relevant Guidance|
|17 - 23||Definition and Interpretation|
|24 - 30||Management of Work-related Violence as a health and Safety Risk|
|31 - 39||Physical Interventions (Control and restraint)|
|40 - 41||Violence in Social Care|
|42||Air transport and 'Air-rage'|
|43 - 48||Liaison with the Police|
|49 - 53||Data Protection Act 1998|
|54 - 62||Action by Inspectors|
|63 - 70||Use of the EMM|
|71 -72||Feeding Back Field Experience|
|73||Cancellation of Instructions|
|Appendix 1||Other Relevant Legislation|
|Appendix 2||Relevant HSE Guidance|
|Appendix 3||Selected External Publications and Guidance|
|Appendix 4||Addresses and Websites|
|Appendix 5||Data Protection Act 1998 - Guidance on the use of violent warning markers|
1. The British Crime Survey (BCS) report 'Violence at work - findings from the 2002/2003 British Crime Survey', estimated that the number of incidents of violence experienced by workers in England and Wales was 849,000 (comprising 431,000 assaults and 418,000 threats). Overall, approximately 376,000 workers had experienced at least one incident of violence at work - 196,000 had been assaulted and 203,000 had been threatened. Since a peak of around 1.3 million in 1995, the extent of violence at work reported in the BCS has seen a downward trend. The level is now similar to that reported in 1991.
2. The BCS shows that workers who are at a higher risk of work-related violence are those who work with or provide a service to the public. These include: security guards; police and prison officers; nurses; health care professionals (including medical practitioners); social workers and probation officers; public transport workers; social workers; teachers; retail staff; and national and local government administrators, (e.g. Job Centre Plus staff).
3. The report also showed that more than two-thirds of workers who had contact with the public received neither formal training nor informal advice on violence or threatening behaviour. Although 81% of workers in protective services (e.g. police) received formal training, among other high-risk groups the level of training did not exceed 54%.
4. The BCS reports also suggest that those working in small or medium sized establishments and those who work during the evening or night are likely to face a higher risk.
5. An employer's general duty under HSW Act s.2 includes ensuring, so far as is reasonably practicable, that his employees are not exposed to risks associated with work-related violence.
6. An employer's responsibilities under HSW Act s.3 include conducting his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment are not exposed to risks associated with work-related violence. An employer's responsibilities can therefore extend to both employees of other employers (e.g. contract staff, security guards etc.), to self-employed persons and also to the public.
7. Careful consideration should be given prior to giving advice or carrying out inspections or investigations relating to risks of violence to members of the public. Inspectors should refer toOC 130/9 'Health and Safety at Work etc Act 1974 Section 3: Enforcement Priorities'taking account of the advice given at paragraphs 3, 4 and 19).
8. Responsibilities arise under 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); when implementing preventive and protective measures (Reg.4); when establishing and reviewing their health and safety arrangements (Reg.5); in providing information to employees (Reg 10); in co-operating and co-ordinating with other employers and self-employed persons (Reg.11 and Reg 12); and with respect to the capabilities and training of employees (Reg. 13).
9. The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR 95) define accidents as including 'acts of non-consensual physical violence done to a person at work'. 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.
10. Acts of non-consensual violence to persons at work, which result in physical injuries, qualify as accidents for the purposes of RIDDOR 95. Where a person at work suffers physical injury and a psychological reaction as a result of an act of violence and is off work for more than 3 consecutive days, the incident should be considered reportable.
11. 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.
12. Other relevant legislation is listed at Appendix 1.
13. HSE's generic guidance on work-related violence is contained in leaflet IND(G)69L (Rev):Violence at work - a guide for employers published in May 2000. This sets out a basic framework for managing violence as a health and safety risk.
14. 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.
15. HSE operational guidance and priced publications on work-related violence in specific sectors - including health, education, retail and banks / building societies are also available, see Appendix 2 .
16. There is much external guidance covering work-related violence (some is listed at Appendix 3 ). Much of the material is sector specific. Some has been developed, with HSE involvement, in conjunction with other Government Departments.
17. HSE's most recent definition of violence is set out in HSE leaflet IND(G)69L (Rev) as:
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.
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 the assault of a supervisor by an employee where the employee 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, e.g. 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. Violence sustained during travel that forms part of legitimate employment will however 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. HSE's generic guidance INDG69L (Rev ) 'Violence at work - a guide for employers' provides a simple outline framework for managing the risks of work-related violence.
25. Employers risk assessments should identify at risk employee groups. Where certain job types or tasks are known to attract particular risks, specific job or task-based assessments should be made. Similarly local risk assessments should supplement generic assessments where there are known local aggravating factors.
26. Risk assessors, health and safety managers and other staff specifically tasked to manage work-related violence should be able to demonstrate an awareness of HSE and other relevant sector specific guidance.
27. An employers reporting system for work-related violence should enable the recorded incidents to be classified (e.g. by type of injury, time and location of incident, employees job or task, details of assailant etc.), to aid risk assessment and to inform decision making. The use of formal internal incident reporting proformas can greatly assist this process (a particularly good example being provided in the Department of Transport guidance 'Protecting Bus and Coach Crews - A Practical Guide for Bus and Coach Operators and Staff'- see Appendix 3, ref. 6 ). Where large numbers of incident reports are generated, the use of computer databases to aid the effective analysis of reported incidents of violence and aggression is recommended.
28. It is particularly important to appreciate that a range of risk reducing measures may be required. For example:-
- changing staffing levels;
- changing the design of the work-place;
- providing security equipment (e.g. locks, CCTV, alarms etc.);
- changing the transactions between employees and clients;
- training staff in interpersonal skills to deal with difficult clients;
- training staff to identify early signs of aggression;
- training staff in the use of appropriate breakaway techniques;
- if necessary, providing trained security guards;
- improving reporting and recording arrangements for work-related violence;
- marking files or records to identify clients with a known history of violence; and,
- managing the transfer of information about clients with a known history of violence, both within and between agencies.
29. It is important to appreciate that on their own, not all of the above measures will necessarily significantly reduce the risks of work-related violence. Selection of the appropriate risk reducing measure will depend upon the specific risks of work-related violence associated with a particular setting (e.g. a specific bus route, a hospital A & E ward, a retail outlet or a school).
30. Employers should be encouraged to provide appropriate counselling and support to staff who are victims of work-related violence.
31. 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, harm to others or to prevent property being damaged. Employment sectors where restraint techniques are commonly used include the security industry, police forces, prison service, mental health institutions, special education, and social care. In many of these sectors the term 'control and restraint' (C & R) is commonly used. However within social care, particularly special needs education, this term can have emotive connotations and any physical contact is collectively referred to as 'physical interventions'.
32. The extent to which the use of such physical interventions is justified has been seen as a highly controversial issue in areas such as health care, social care, education and the prison/police services, and call for a careful balance of the human rights of the employee and those of the service-user / prisoner etc..
33. Specific reference is made to restraint techniques in the arrangements for liaison between HSE and the Independent Police Complaints Commission1. The protocol document (which is currently under review) indicates that HSE inspectors will not seek to investigate incidents involving the police where:
(1) the main issue is that of reasonable force being used in dealing with a member of the public; or
(2) 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.
34. The question as to whether the use of C&R or physical intervention is justified in particular circumstances, is usually a matter for professional or clinical judgement rather than a health and safety issue. It is not part of HSE's role to advise on when an intervention should be made. However, such interventions 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. These steps will include ensuring that appropriate systems of work are in place including appropriate policies and procedures.
35. In situations where the client is known, it would be appropriate for the employer to clearly state what form of intervention should be used and, if necessary, what forms should not be used.
36. Where patients are involved, the employer should carry out assessments of their physical needs and limitations and record the significant findings. In certain situations, e.g. hospital accident and emergency departments, previous case histories may not be known. Staff should be trained in how to monitor the patient and what to do in the event of distress being noted. Further guidance can be found inSIM 7/2003/10.
37. Where staff are expected to use intervention 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, Department for Education and Skills, Home Office and various other government departments have been, or are, involved in developing accredited training standards. Within healthcare for example the Counter Fraud Security Management Service (CFSMS) is developing a national syllabus of accredited training for the majority of NHS staff. Further information can be found inSIM 7/2004/14.
38. A professional body, theNational Control and Restraint General Services Associationhas been established to support General Services tutors dealing with control and restraint across a range of professional groups and agencies.
39. Inspectors who have concerns about the training in intervention techniques provided by particular employers should seek advice from the relevant Sector or from Health Unit.
40. Concern about the extent of violence to social care workers resulted in the establishment of a National Task Force on Violence Against Care Staff This was led by the Department of Health, with HSE (Sector) input.
41. 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 various guidance material including a self-audit tool for use by employers and an employee checklist.
42. Inspectors should not become involved in discussions regarding the prevention and control of violence and abuse aboard aircraft in flight. This area is the remit of the Civil Aviation Authority (01293 567171). Threats and attacks on workers in airports (so-called 'ground rage') are within HSE's or the relevant LA's scope, depending on where in the airport they occur. Transportation Section of the Commercial and Consumer Services, Transportation and Utilities Sector can advise further.
43. 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.
44. 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 (ACPO) and the Crown Prosecution Service for dealing with such incidents. The Public Services Sector, are also separately drafting a Memorandum of Understanding with ACPO and the Department of Health to address roles and responsibilities for dealing with deaths that occur within healthcare.
45. Local arrangements for HSE / police liaison can be used to discuss co-operation 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.
46. 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.
47. 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. The Act also introduced anti-social behaviour orders.
48. 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.
49. 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, e.g. by marking client records. This is a legitimate tactic which should be encouraged.
50. Inspectors should be aware that such systems will be subject to the Data Protection Act 1998 (DPA) but in practice this is not a significant problem because for violent acts, the Crime and Disorder Act 1998 (CDA) provides a statutory gateway enabling employers to process and disclose this information to relevant authorities by virtue of the power found in section 115 of the CDA.
51. 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 be 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.
52. There needs to be clear and justifiable reason for processing / 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 at Appendix 5 .
53. Section 7 of DPA gives data subjects the right to access their own personal data and potentially to any personal data held by their employer within a 'violence marker' system (if held on a computerised or relevant manual filing system). This is an important right and should not be interfered with lightly. However, section 29 allows for an exemption where the application of this right would prejudice crime detection and section 31, thedischarge of regulatory functions. Additionally, where neither of the above exemptions apply, an assessment of whether the application of subject access rights under section 7 would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person may be necessary under 'the Data Protection (Subject Access Modification) (Health) Order 2000'2. This decision would need to be made by a relevant health professional.
54. Work-related violence should be dealt with as a legitimate health and safety issue when assessing compliance with the HSW Act and relevant statutory provisions. It is likely to be a relevant hazard where the work activities involve workers having direct contact with the public. These include the activities within the sectors listed at para 2 .
55. 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. The HSE investigation should, however, focus on the management of violence rather than duplicate the police line of enquiry.
56. Inspectors should check that, where work-related violence is likely to be a relevant hazard, employers have assessed the risks to their employees and other workers.
57. Inspectors should check that where an employers risk assessment identifies work-related violence as a hazard requiring appropriate management and control, that such preventive controls have been implemented and that at risk groups of employees (and contractors) have received appropriate training and information.
58. In order to determine the incidence of physical injury arising from work-related violence inspectors should inspect employer's records. It may sometimes also be useful to seek information on recorded or other known incidents of violent or aggressive behaviour to employees not resulting in injuries.
59. Inspectors are advised that Health Unit, some FOD Sectors and RISSU hold information on RIDDOR reported incident rates of physical violence for specific SIC codes / job types. Such data may, at times, usefully serve to inform whether work-related violence can be considered to present a significant hazard to duty holders in sectors other than those indicated at para 2 . Inspectors seeking advice on reported incident rates are therefore advised to contact Health Unit, the relevant Sector or RISSU. Similarly British Crime Survey reports may also provide useful background data.
60. Reference should be made to relevant SIM's for sector specific enforcement guidance. ( Appendix 2 )
61. 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 are carried out in parallel to those being undertaken by the police, it may be appropriate to take 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.
62. Any proposed enforcement action in relation to HSW Act s.3 relating to an employers duty to the public should be referred to the relevant HSE Sector and Health Unit. The relevant Sector / Health Unit will in turn arrange to liaise, as appropriate, with CEPS2 in Policy Group and FODOSU2 (FOD Legal and Enforcement).
63. Violence is primarily a societal problem in addition to being a health and safety concern. In high risk industries, it may well need to be acknowledged that a residual risk of injury resulting from work-related violence will remain even when appropriate control measures are in place.
64. EMM Table 5.2 should be used to establish initial enforcement expectation (IEE). In industries with a risk of violence where an employer has failed to carry out a suitable and sufficient risk assessment, the IEE would indicate that an Improvement Notice should be issued.
65. Where the exposure to violence can be avoided, i.e. there are reasonably practicable controls which can be applied, the benchmark standard should be set at 'nil / negligible.' Otherwise, the benchmark will depend on the industry / activity and current guidance. In cases of doubt concerning reasonably practicable controls, advice should be sought from the relevant Sector.
66. Much of the published industry specific guidance will have the authority of an "established" standard for the purpose of determining the IEE. Consideration should be given as to when this guidance was published and it's distribution throughout the target industry when considering the enforcement action to take.
67. Health Unit's current advice is that where there is a foreseeable risk of violence (which should be supported by RIDDOR, or other crime intelligence data) the actual risk of physical violence will usually be of a consequence of a 'significant' or 'serious' personal injury.
68. Inspectors will need to use their professional judgement (and supporting guidance) to determine whether the likelihood is probable, possible, remote or nil / negligible.
69. EMM Risk Gap Table 2.1 should normally be used to establish risk gaps.
70. Inspectors should takefullaccount of any relevant duty holder and strategic factors when determining enforcement action.
71. If inspectors discover employers who are using novel control strategies, or have carried out innovative work in this area, it would be greatly appreciated if they could send details to Health Unit and the appropriate Sector so that the information can be effectively disseminated and be considered for possible inclusion in future guidance.
72. Details of inspection experience that may be useful to other inspectors should be reported in the same way.
73. OC213/2 version 1 cancel and destroy .
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 4 .
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.
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 preventive measures.
1. IND(G)69 (Rev): Violence at work: a guide for employers HSE Leaflets (single copies free) 2000 (FOD file 213).
2. HS(G)133 : Preventing violence to retail staff, HSE Books, 1995, ISBN: 0 7176 0891 3 (FOD file 213).
3. HS(G)100 Prevention of violence to staff in banks and building societies, HSE Books, 1993, ISBN: 0 7176 0683 X (FOD file 213).
4. HSG 229:Work-related violence case studies: Managing the risk in smaller businesses, HSE Books, 2002, ISBN 0 7176 2358 0 (FOD File 213). A series of 10 case studies showing how work related violence can be managed in smaller businesses. An abridged version of the case studies can also be found on the HSE website.
5.Preventing violence to staff, HSE/Tavistock Institute of Human Relations, 1988, ISBN 0 11 885467 4 (FOD file 213).
6. Education Service Advisory Committee booklet:Violence in the education sector, HSE Books, 1997, ISBN: 0 7176 1293 7 (FOD file 356).
7. 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 (FOD file 357).
8. Health and Safety Laboratory. Report WPS/03/05:Managing and Preventing Violence to Lone Workers - Case studies.(A shorter version of the case studies is also available on the HSE website)
9. HSE Entertainment Information Sheet No 2 : Violence to workers in broadcasting (FOD file 344).
Further information on work related violence can also be found on the HSE website sectionWork related violence - From experience
Case studies showing how some organisations have managed the risks of work place violence to lone and mobile workers are available on the HSE website sectionLone workers and work related violence
OC 202/3 Work-related Stress.
OC 334/2 Prison Service Organisation, Management and Inspection.
OC 401/2 Construction work subject to protest action.
SIM 5/2001/16 'Passenger Road Transport'.
SIM 7/2001/30 'Current Issues in HM Prison Service'.
SIM 7/2002/30 'Programme work for local authority social services departments: Manual handling in the community and violence to staff'.
SIM 7/2003/08 'Health services industry programme 2003/04: management of violence and aggression in healthcare'.
SIM 7/2003/10 'General guidance on the management of violence and aggression in healthcare'.
SIM 7/2003/18 'Inspection of the ambulance service'.
SIM 7/2004/14 'The role of the counter fraud and security management service in the management of violence and aggression in the National Health Service (NHS) England'.
SIM 8/2004/09 'Violence to staff - results of 2002/03 work programme and future HSE rail strategy'.
1.Violence at Work: Findings from the 2002/03 British Crime Survey (by Anna Upson).
2.Violence at work: findings from the British Crime Survey: Home Office (by Tracy Budd) (FOD file 213).
3.Violence at work: new findings from the 2000 British Crime Survey: Home Office (by Tracy Budd).
4. Fox, W., Polkey, C. and Boatman, P;Managing Violence in the Workplace; Tolley; 2002, ISBN 0 7545 1967 8.
5. Preventing Violence to Retail Staff - An USDAW Guide, USDAW, April 2003.
6.Protecting Bus and Coach Crews - A Practical Guide for Bus and Coach Operators and Staff; Department for Transport, December 2003 - 03LTPSF 01777/M.
7.Protecting Bus and Coach Crews - A quick reference guide for bus and coach staff, Department for Transport, December 2003 - 03LTPSF 01777/L,.
8.Public Behaviour - Reducing Assaults on Railway Staff, Risk Solutions (A report for Railway Safety), Railway Safety and Standards Board, December 2002.
9. Public Behaviour - Getting the best use out of CCTV in the railways - Executive summary. Railway Safety and Standards Board, 2003.
10.A Safer Place to Work - protecting NHS Hospital and Ambulance Staff from Violence and Aggression. National Audit Office Report, March 2003.
11.Violence at Work: a guide to risk prevention. Unison.
SIM 7/2003/10 'General Guidance on the Management of Violence and Aggression in Healthcare' includes links to a range of useful documents relating to the Healthcare, Social services and Education sectors.
The British Institute of Learning Disabilities (BILD) (see Appendix 4 ) publish a range of publications relating to Physical Interventions. These include the BILD Code of Practice for Trainers in the Use of Physical Interventions, ISBN 1 902519 78 7.
The British Retail Consortiumhave produced a video based training package on managing violence in the retail workplace.
The National Occupational Standards in Managing Work-related Violence have been developed by the Employment National Training Organisation, with funding from HSE.The Standards provide a valuable new resource for employers to help them manage work-related violence.
The standards are a benchmark for good practice. They will enable employers to draw up policies on work-related violence and will provide a framework for managers and staff to assess training needs by making it easier to identify gaps in knowledge and skills. The Standards comprise 11 Units which are aimed at different occupational and management roles, ranging from employees to senior managers. A summary of each Unit can be found on the websiteEmployment NTO
The Standards are available for internal use on the HSE intranet Managing Work Related violence - ENTO Occupational Standards CD ROMThey are available to external users on CD-ROM and can be purchased from the Employment NTO through their website.
Commission for Racial Equality
10/12 Allington Street
0207 828 7022
ENTO (Formerly Employment NTO)
4thFloor Kimberley House
47 Vaughan Way
0116 251 7979
Equal Opportunities Commission
0161 833 9244
|British Institute of Learning Disabilities||www.bild.org.uk|
|British Retail Consortium||www.brc.org.uk|
|Department for Transport||www.dft.gov.uk|
|Institute of Conflict Management||www.conflictmanagement.org|
|National Control and Restraint and General Services Association||www.ncrgsa.com|
|Railway Safety and Standards Board||www.rssb.co.uk|
|The Suzy Lamplugh Trust||www.suzylamplugh.org|
|Union of Shop, Distributive and Allied Workers||www.usdaw.org.uk|
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, e.g. 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, e.g. 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.
1 The Independent Police Complaints Commission replaced the Police Complaints Authority on 1stApril 2004.
2 S.I. 2000 No. 413