Duty of Care at the Workplace

Duty of Care at the Workplace

Index

1. I.                   Legal Provisions on duty of care in the workplace
   1. a.      The employer’s duty
   2. b.      Duty of employees, customers and visitors
   3. c.       Implications of duty of care requirements on the competency of private security personnel
2. II.                Implications of physical intervention

 

Chapter Three

Duty of Care at the Workplace

Is security personnel employed in the Irish Private Security Industry competent, is the capable guardian capable?

1. I.                  Legal provisions on duty of care in the workplace
   1. a.     Employer’s duties

The increasing workplace violence incidences have attracted legal attention with regards to the role of the operational private security personnel and their employers in the protection of human rights and fundamental freedoms (Hakala, 2008). ASIS International (2005) categorizes the duty of an employer into two; the employer’s obligation to safeguard against preventable risk to customers, employees and other visitors on the premises, and the obligation of the employer to consider the rights of employees in the course of any disciplinary or investigative procedure arising from workplace violence incidences or threats. In respect to the first category, there is no particular law that mandates the employer to prevent violence at the workplace (ASIS International, 2005). However, the duty is imposed on the employer in relation to workplace safety, health and welfare legal provisions including common law and statutory provisions.

Though there is no general duty to avoid harming others (ASIS International, 2005), the existence of a duty of care has been recognized by the courts in the past particularly in circumstances where one can reasonably foresee the likelihood of the course of conduct causing damage or injury.But as Dunne (2000) puts it, so far, the Irish courts and legal society have only been able to implement provisions on the responsibility of employers to take charge in case of physical damage and are yet to implement that of mental damage caused to the employee in the course of undertaking their day to day duties. Lawyers have interpreted the law to mean the employer owes his employee the duty of care only in foreseeable risks (Dunne, 2000).

Common law provisions form a platform for solving workplace violence in most states (ASIS International, 2005). The principles included in the common law provisions encompass the obligation of the employer to make responsible measures for guarding against workplace violence that can be reasonably foreseen. In the case of Bradley v. CIE[1], Henchy J. stated that the employer has an unspecific duty of care to his employees in respect to the ‘reasonable man’ perspective. The employer is supposed to take care of his employees’ safety without specifying the circumstances under which he has to do this. The employer is expected to take an action which all other right thinking members of society could have done in case they were in the same situation (Dunne, 2000). Even in circumstances where a certain action is an obvious action that will take care of the safety of the servant, there are some factors that may prevent the employer against taking the action and he or she will still be justified for not taking the action(Skills for Security, 2010).Common law also encompasses negligence theories such negligent hiring in terms of failing to ensure proper screening of employee competency qualifications, especially for sensitive posts which involve great interaction with the society. The second negligent theory is negligent supervision which penalizes the employer for failing to ensure supervision of employees and disciplining those who breach anti-violent regulations. Thirdly, there is the theory of negligent retention which penalizes the employer for failing to ensure that employees who engage in disorderly conduct are terminated (ASIS International, 2005).

The Safety, Health and Welfare at Work Act 1989 provides that every employer should, from a ‘reasonable man’ perspective, ensure the safety, health and welfare at work of all employees are protected. Though the 1989 Act has been updated and replaced with the 2005 Act, the legislation concerning the legal duties of the employer still hold. According to the 2005 Act, an employer, with regards to an employee, refers to individuals the employee has agreed to serve, is serving or has just stopped serving. Again, a person who controls and directs an employee’s activities, or a person who succeeds the employer are inclusive in the definition. According to the Act, the employer should manage and conduct activities at the workplace in a manner that the safety, health and welfare of their employees are reasonably practicable. Secondly, the Act provides that the employer should ensure reasonable working conditions for his employees by conducting and managing improper behavior or conduct that would increase their vulnerability to safety, health and welfare risks.Thirdly, the employer should provide work systems which are maintained, performed, organized, planned and revised in a reasonably practicable manner that is safe and without health risks. Fourthly, the employer should provide and maintain welfare arrangements and facilities for their employees in the course of employment. Fifthly, employers need to provide the supervision, training, instruction and information essential for ensuring that the welfare, health and safety of employees are in reasonably practical conditions. Again an employer is mandated to determine and implement welfare, health and safety measures that are essential for protecting the employees from safety, welfare and health risks at their workplace. The employers should identify possible workplace dangers and conduct a risk assessment with regards to prevailing circumstances and the general prevention principles stipulated in the Safety, Health and Welfare at Work Act 2005. The employer is also required to appropriately prepare and revise sufficient plans and procedures to be followed and actions to be taken in the event of a crisis. Lastly, the employer is required to employ a competent employeefor the purpose of ensuring, as far as is reasonably practicable, the health, safety and welfare of their employees at work(Skills for Security Manual, 2010; The Safety, Health and Welfare at Work Act 1989).

The Safety, Health and Welfare at Work Act 1989 also extends to non-employees, for example, patrons entering nightclub and shoppers entering a retail shop (Perkins, 2009). Employers must also conduct their undertaking so that individuals at their place of work who are not their employees are not exposed to risks to their safety, health and welfare (Occupiers’ Liability Act 1995, Farrell and Pease, 2006).Duty placed on an employer by a relevant statute regarding her employee will apply even in respect of her using the service of both full-time and part-time employees (Farrell & Pease, 2006). While assigning duties to an employee, every employer must ensure that working conditions are good enough as to protect the health, safety and welfare of employees.

An employer is mandated to conduct a risk assessment to ensure that adequate measures for minimizing any possible dangers to employees are employed (The Safety, Health and Welfare at Work Act 2005; Skills for Security, 2010; ASIS International, 2001).According to Finney (2004), the employer has the responsibility of identifying personal risk factors that are likely to cause his or her employees to engage in violence especially in the night-time economy. The assessment also includes identifying the probable victims and coming up with appropriate preventive and harm-reduction measures (Finney, 2004). Under the Management of Health and Safety at Work Regulations 1999[2], there are provisions for the steps that the employer must follow in controlling and assessing hazards (Skills for Security Manual, 2010). The Personal Protective Equipment at Work Regulations (PPE) 1992 imposes a duty on the employer to assess suitability operation and the utilization of protective facilities (Skills for Security Manual, 2010). Common law (Skills for Security Manual, 2010) and The Occupier’s Liability Act 1995 impose duty of care on employers to those who enter the premises. The occupier owes a duty of care to an entrant. The Occupiers Liability Act 2005 defines an occupier as a person with total control over the premises that is as reasonable as to owe a duty of care to an entrant with regards to probable risks that could occur on his or her premises. According to the Occupiers’ Liability Act 1995, entrants include trespassers, recreational users and visitors. The duty owed to entrants includes the acceptance of liability and responsibility for all acts or omissions which may result to personal injury or loss (Skills for Security Manual, 2010).

According to the Skills for Security Manual (2010), the success of a prevention strategy is dependant on appropriate assessment of violence risks. Risk assessment is categorized into two; dynamic risk assessment and planned risk assessment. Under planned risk assessment, proper decisions concerning relevant regulation measures with regards to the reduction of violence risks are deliberated. It also encompasses the identification of particular activities and tasks constituting intrinsic hazards like arresting and detaining a suspected thief. Under dynamic risk assessment, the employer identifies ways in which the employees can promptly react to changing conditions and reduce escalation risk. There is need for sensitively reviewing previous incidences for the purposes of ensuring that risk controls are appropriately informed (Skills for Security Manual, 2010; ASIS International, 2005).

There is a significant contradiction between the Health and Safety Authority (HSA) and the Private Security Authority in relation to physical intervention training. While the Health and Safety Authority stipulates the need for physical intervention training, the Private Security authority does not provide for such requirements.

1. b.    The duty of employees, customers and visitors

Employees are mandated to take reasonable care for those affected by their omissions and acts as well as their own health and safety. Employees have a duty of cooperating with their employer, customers visiting on the premises on matters concerning safety and health. The employees are also mandated to employ personal protective facilities and machines in a way that ensures the intended protection is provided. Again the employees should ensure that all defects in relation to health and safety are reported to the employer immediately (Safety, Health and welfare at Work Act 2005). Employees are prohibited from working under the influence of drugs or drink or engaging in disorderly conduct which could pose danger to their safety, health and welfare or others (Safety, Health and welfare at Work Act 2005). Employees are also entitled to make complaints without any fear of victimization by their employers or other employees.

Clients and visitors have the responsibility of cooperating in ensuring that adequate safety and health conditions are provided. They also need to ensure that they are involved in the action of preventing and protecting possible occurrence of risks. The customers should also properly inform the company in case of any violent incidence or threat. However, in case the damage or injury suffered by the visitor was not reasonably foreseeable in relation to the prevailing situation, the employer (or occupier) will still be held liable for the loss (Occupiers’ Liability Act 1995).

Section 13 of the Safety, Health and Welfare at Work Act 2005provides for the duties of the employee such as not being under any intoxicant, attending training, reporting defects, and co-operating with the employer. But in particular there is a duty imposed upon the employee to protect his or her own safety, health and welfare and that of others who may be affected by their acts or omissions (Farrell & Pease, 2006).

The Intoxicating Liquor Act 2003, which is concerned with combating drunkenness, disorderly conduct, binge drinking and underage drinking (Finney, 2004), imposes a duty on the door security personnel to vet entrants to a bar or nightclub in relation to their dress code, intoxication, approaching behavior, age and suspicion of drug use. Private security staff is very instrumental in the course of combating the occurrence of a violent incidence(Skills for Security Manual, 2010). They somehow ensure that the workplace environment is controlled and secured in the course of a violent incident. In addition, the door security personnel are charged with ejecting individuals from the premises for disorderly conduct or behavior.

Disorderly conduct refers to an unreasonable behavior by an individual on licensed premises whose probability of causing distress, fear or injury to another individual on the premises is reasonably foreseeable (Louisville Publishing Ltd, 2011). In most cases, violence on the premises relates to the conduct of staff, policies and the layout of the premises (Finney, 2004; Farrell & Pease, 2006). The Intoxicating Liquor Act 2005 provides that disorderly conduct includes, but is not limited to: conduct leading to property damage; insulting, quarrelsome, abusive, threatening or violent conduct; behavior in breach of The Fire Services Act duty; conduct that constitutes a breach of duty of the Offences Against the Person or the Fire Arms Act and; behavior constituting safety, welfare and health risks to another person.

1. c.      Implications of duty of care requirements on the competency of private security personnel

Non-compliance with the Intoxicating Liquor Act 2005 has huge implications in relation to the existence of the employer’s business. Since the Act requires the employer to renew the license of his premises only if the police force and the public do not have any objections, employers must implementmeasures which ensure compliance with the Act (Perkins, 2009). The twelve-monthly renewal practice is essential for verification of the orderly and harmoniousmode in which the business was conducted in the preceding year. The renewal is intended to ensure that public safety, public order and criminality are controlled. With regards to the role played by the door security personnel in the Night-Time Economy (Finney, 2004), their competency will largely determine whether or not the business license will be renewed. Lawyers find it advisable for employers to invest in training of door security personnel to prevent trivial situations from developing into an avoidable situation (McGoey, 2011). According to Maguire and Nettleton (2003), private security personnel somehow perpetuate aggressive conduct. About a third of violent incidences in licensed premises encompass door security personnel alleged as offenders. The current legal provisions that are intended at ‘professionalizing’ the function of the private security personnel both at the local and national levels are likely to reduce perpetration of violent incidences (CoESS & Euro-fiet, 1996) especially in the Night-Time Economy (Security Standard Authority, 2002; Finney, 2004; Deehan, 1999; Brookman & Maguire, 2003).

Finney (2004) points out that it is essential for persons guilty of disorderly conduct on the premises to be ejected from the premises. The door security personnel are mandated to apply reasonable force in circumstances where the agitator refuses to leave the premises. Employees in alcohol-selling economies have the duty of not serving already intoxicated patrons with more alcohol. It has been argued that continually serving intoxicated patrons is one of the contributory factors that promote permissiveness which leads to aggressive conduct (Finney, 2004). Yet it is evident that most club and pub owners promote excessive drinking in order to increase their sales (Finney, 2004). Some customers who are suspected to be intoxicated usually get aggressive when denied entrance into the club or pub (Louisville Publishing, 2011). In most cases, door security personnel are compelled to apply force in ejecting such patrons. It is imperative for the employer to enact adequate preventive actions to ensure that their business license is not terminated (Louisville Publishing Ltd, 2011). The component of situational crime prevention requires the facilitation of the competency of guardians in all places in solving criminal activities (Felson, 1994; Finney, 2004). The legal requirements go hand in hand with the situational prevention of violent crime theory. With either of them, there is need for attending to conditions which promote violence and working to establish human environments that provide mitigating measures for combating violence (McGoey, 2011; Finney, 2004). According to ASIS International (2005), a workplace culture which promotes mutual respect and professionalism can help in ensuring that violent incidences and threats are prevented and that the organization is well prepared in responding to possible risks.

1. II.               Implications of Physical Intervention

McGoey (2011) points out that the door security personnel have unwittingly caused death or grievous bodily harm to patrons with disorderly conduct in the course of employment. In most cases where custodial restraint is required, the owners of premises order their operational security personnel to apply force in order to restrain such conduct. Some door security personnel inappropriately apply positional asphyxiation on restrained persons under their care (McGoey, 2011). Recently, a 22-year old young man died out of positional asphyxiation after he had been restrained for stealing a perfume bottle worth 35 pounds at Swansea’s Quadrant Center (Get Licensed Limited, 2011). In circumstances where the patron or trespasser dies or is subjected to grievous bodily harm, the duty of care owed to them is breached. The employer will be held liable for breaching the duty of care under the Irish law. Furthermore, the operational security personnel will not be held accountable for such conduct under the law. According to the law, the employer is liable for any damage caused while the employee is in the course of his or her employment. In April, 2011, the High Court found Ardboyne Hotel liable and awarded the plaintiff from County Meath 100,000 pounds after two doormen allegedly assaulted him and caused his epileptic condition to aggravate significantly (Louisville Publishing Ltd, 2011).

Although the law requires the employer to employ the services of competent operational security personnel and ensure safe work systems, it is common for operational security personnel to work alone all the way through the security sector. Indeed the concept of a lone worker increases the vulnerability of private security personnel to welfare, health and safety risks in respect to the routine activities and lifestyle theories (Felson, 1998; Mustaine & Tewksbury, 1999; Cohen & Felson, 1979; Stein, 2010). In case they are attacked while on their own, even though they are provided with panic alarm and communication equipment to alert others to come for their aid, the security personnel still need to defend themselves, customers, other employees, trespassers and their employers’ premises. Alerting others of the danger does not reduce the risk of harm because the aid will not arrive immediately. The operational private security personnel are expected to defuse and contain a threatening condition until the police arrive at the scene (ASIS International, 2005; Skills for Security, 2010).

The perception that violence is a de facto element in the night-time economy makes the venue a platform for violence perpetration (Hobbs et al., 2003; Finney, 2004). Again, the police only get involved in circumstances deemed serious. The violence incidences that get recorded include only those which result in grievous damage or injury, police attention or prompt victims to claim damages (Finney, 2004; Polyner & Warne, 1988). Positive care of customers and management of conflict should therefore be part of the training that the operational private security personnel have to undergo (Skills for Security Manual, 2010). This will cut down on violent behavior in the working environment. Thieves who do not want to be noticed may be controlled by proactive delivery of service. Operational private security personnel should be trained to responsibly use physical intervention in case alternative means of curbing customer violent behavior failed(Skills for Security Manual, 2010). They should know how to use minimum force in physical intervention (McGoey, 2011).The private security personnel must be trained on how to apply physical intervention with regards to probable health, welfare and safety risks to employees, trespassers, sub-contractors and customers (Skills for Security Manual, 2010; Security Standard Authority, 2002).

 

 

 

 

 

 

 

 

 

References

1. a.     Books and journals

ASIS International. 2003. General security risk assessment guideline. Alexandria, VA: ASIS        International. http://www.asisonline.org/guidelines/guidelines.htm

ASIS International. (2005). Workplace Violence Prevention and Response Guideline.                               Alexandria, VA: ASIS International.

Avoiding Law Suits – Practical Steps for Licensees & Theories of Liabilities.Lousville      Publishing Ltd. (2011).

Brookman, F. & Maguire, M. (2003). Reducing homicide: a review of the possibilities. Home         Office Online Report 01/03. London: Home Office.

Button M. (2007). Security officers and policing: powers, culture and control in the governance    of private space. Ashgate Publishing Ltd.

CoESS & Euro-fiet. (1996). Joint Opinion of the European Social Partners in the Private Security             Industry on Regulation and Licensing. London: CoESS/Euro-fiet.

Cohen, L. & Felson, M. (1979). Social change and crime rate trends: A routine activity.     American Sociological Review, 44, 588-608.

Deehan, A. (1999). Alcohol and Crime: Taking Stock. Crime Reduction Series Paper 3. London:   Home Office.

Dunne, M. (2000). Employers Liability for Employee Stress. Bar Review.

Farrell, G. & Pease, K. (2006). ‘Criminology and Security’, in Gill, M., The Handbook of Security. London: Palgrave MacMillan, 179-200.

Finney, A. (2004). ‘Violence in the Night Time Economy. Key findings from Research’.   Findings 214. Home Office: London.

Hakala, J. (2008). “Why regulate manned private security?” A report on the reasons and                            requirements for private security regulation as expressed by representatives of         governments, industry associations and academia. Helsinki: Opetushallitus.

Health and Security Authority. Guidelines for Employers, Employees and Clients in the Security             Industry.

Hobbs, D., Hadfield, P., Lister, S., & Winlow, S. (2003). Bouncers: Violence and Governance in             the Night Time Economy. Oxford: oxford University Press.

Maguire, M. & Nettleton, H. (2003). Reducing alcohol-related violence and disorder: an   evaluation of the ‘TASC project. Home Office Research Study. London: Home Office.

Mustaine, E. & Tewksbury, R. (1999). A routine activity theory explanation for women’s stalking victimizations. Violence Against Women, 5, 43-62.

Perkins, A. (2009). “Taking it on the Chin: Violence Against British Door Supervisors”.

Polyner, B. & Warne, C. (1988). Preventing Violence to Staff. London: Health and Safety                         Executive.

Skills for Security, 2010. A guidance to good practice for employers, towards safer                                    performance of the retail security function. Security Industry Authority.

Security Standard Authority. (2002). Raising Security Standards. London: Home Office.

Stein, R. E. (2010). The Utility of Country Structure: A Cross-National Multi-level Analysis of                Property and Violent Victimization. International Criminal Justice Review,                           20:35.SAGE.

1. b.    Statutes and Judicial precedents

Bradley v. CIE [1976] IR 216.

Management of Health and Safety at Work Regulations: Northern Ireland 2000: Amended 2006.

Occupiers’ Liability Act 1995, No. 10/1995.

Personal Protective Equipment at Work Regulations (PPE) 1992.

Private Security Services Act 2004, No. 12 of 2004.

Safety, Health & Welfare at Work Act, 1989, Section 6(1).

Safety, Health and Welfare at Work Act 2005, No 10 of 2005.

The Intoxication Liquor Act 2005.

1. c.      Websites

Get Licensed Limited. (2011). “Is SIA Physical Intervention training enough to do the job?”        [Online] Available from:http://www.get-licensed.co.uk/sia-training-blog/is-sia-physical-           intervention-training-enough-to-do-the-job/

 

McGoey, C. E. (2011). Your Prescription for Security and Safety [online] Available from; crime               doctor website http://www.crimedoctor.com/ [Accessed August 8, 2011]

 

The Private Security Authority, from http://www.psa.gov.ie/ [Accessed August 8, 2011]