I have become aware of potentially serious interpersonal conflict between two employees and am concerned that this may escalate into a physical confrontation. How do I handle it?
Employers should be aware that liability can attach to a company for wrongful or violent acts perpetrated by employees against work colleagues, even if they have no direct control over them. This is especially the case where an employer is on notice of deteriorating relations between particular employees.
Liability can arise in two ways – where an employer is deemed vicariously liable for the acts of an employee, and under health and safety law.
An employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment. This will involve an analysis of the facts in a given situation to decide whether there is a close connection on the one hand between the duties which the employee is engaged to perform and which fall within the scope of the employment, and the incident which has occurred. Factors which may be taken into account would include:
- The nature of the employer’s business;
- Whether the risk of the type of incident which occurred arose because of the nature of the business, or the nature of the employee’s duties;
- Whether the incident could be said to be incidental to or a consequence of anything the employee was instructed to do by the employer;
- Whether at the time of the incident the employee could have been said to be acting, however misguidedly, in the interests of the employer, or was merely pursuing some private end
- Whether the employee was expected or encouraged to act aggressively in the course of his work;
- Whether the incident was borne out of resentment, revenge etc.
Liability may attach to an employer if it can be said that an incident is consistent with the interests of the employer and has a close connection with any actions that fall within the ambit of the employee’s employment. So, in a recent case, a chef who flew into a rage and assaulted a fellow employee was deemed to have been motivated by some personal resentment “which ignited an apparently ungovernable temper.” In turn the Court considered that his actions were not remotely consistent with the interests of his employer and had no close connections with any actions that fell within the ambit of his employment, and as such his employer was not vicariously liable for his assault.
Health and Safety
Health and safety legislation imposes an obligation on employers to prevent improper conduct likely to put the health and safety of employees at risk, as far as is reasonably practicable. An employer must provide and maintain a safe place of work for employees and provide competent co-workers. The Courts have said that improper conduct includes matters such as bullying, harassment, physical violence, practical joking and racial or other abuse.
The onus will be on an employer who has been put on notice of a potential conflict between employees, to implement measures to protect against the risk of a future assault in the workplace. Looking again at the case of the chef who assaulted a colleague, when addressing the employer’s duty to provide a safe place at work the Court took account of the fact that a senior manager had prior knowledge that the individual had been dismissed from his previous job for a similar incident. In turn the employer had failed to exercise reasonable care by failing to implement measures to protect against the risk of future assault in the workplace.
Practical Steps for Employers
- Foreseeability: Given that it can be difficult to predict such acts before they occur, employers must ensure they maintain a “zero tolerance” policy towards violence or aggression in the workplace. Where an employer becomes aware of the potential for violent or aggressive behaviour, they must exercise reasonable care by implementing measures to protect against that risk. Employers may wish to consider segregating warring employees, if this is possible from a practical viewpoint, and if it can be carried out in a manner that is fair to the parties concerned.
- Act immediately: Where an incident occurs in the workplace, an employer should act immediately to deal with incidents of violence or aggression in a robust manner, and in accordance with a disciplinary procedure (see below).
- Safety Statement: The Safety Health and Welfare at Work Act 2005 requires employers to draft a safety statement setting out how the safety, health and welfare at work of employees is to be managed. If physical violence is identified as a risk in the workplace, then the appropriate safeguards put in place to mitigate the risk of same and protect employees should be included in the safety statement.
- Disciplinary and Grievance Policy: Similarly, employers should ensure that a comprehensive disciplinary policy is in place which sets out the types of conduct which are prohibited in the workplace, the different stages of the disciplinary procedure and the sanctions that will apply where there is a finding of improper conduct. A detailed grievance policy should also be in place, so that employees have a recognised procedure to follow in bringing grievances to the attention of the employer. Employees should be made aware of the content of such policies, ideally at the commencement of employment.
- Recruitment: Employers may also wish to review pre-employment screening procedures to ensure a full picture of a candidate’s employment history is obtained during the recruitment process.
- Deterrent Factor: The Courts have referred to the possibility of employing security staff or CCTV monitoring as a deterrent to violent or aggressive behaviour in the workplace. The Office of the Data Protection Commissioner has recently published updated guidance on the use of CCTV monitoring, and data protection considerations must be taken into account in any decision to implement CCTV monitoring in the workplace.