What if you are a business that hires security guards or a night club that engages bouncers, is it right for you as an employer to ask them to perform their duties and protect property or patrons? What happens in a situation where a security guard, to prevent a robbery of company goods or protect employees, applies such force so as to permanently injure or, in a worst-case scenario, kill an intruder? What really amounts to reasonable force? Not only may that individual face criminal prosecution but he may lose his job on the grounds of gross misconduct.
This type of scenario is not limited to a certain job type. An employee who, for example, works in a petrol station could end up in an altercation with a person in the process of committing a crime. But what are the implications for the business?
Employers are aware that they have to comply with health and safety legislation in their workplace. Health and safety is about preventing individuals from being harmed by work or becoming ill, so an employer has to take the right precautions and provide a safe working environment.
Health and safety is a fundamental part of business. The legislation is there to protect the health and safety of employees or members of the public who may be affected by a business's activities.
If an employer fails to comply with these requirements, there can be serious consequences, not only for the business but also for the directors who run the business. As a director, you may be subject to fines, imprisonment and disqualification. Further, with the introduction of the Corporate Manslaughter & Corporate Homicide Act 2007, an organisation is guilty of an offence if the way in which its activities is managed or organised causes employees or members of the public injury that results in death. The organisation can be subject to a fine, a place on a ‘name and shame register' and be subject to a remedial order.
What should you do, as a business, to minimise the risk?
1 Ensure you have a written health and safety policy
2 Assess risks to employees, customers and any other people who could be affected by your activities.
3 Arrange for effective planning, organisation, control, monitoring and review of preventative and protective measures within the business
4 Ensure employees have access to competent health and safety advice
5 Consult employees about the risks at work and current preventative and protective measures. Discuss with them what they should do if they find themselves in a confrontational situation
6 Ensure you have public liability insurance that gives you protection against legal liability for injury to third parties or damage to their property, arising out of and in the course of the business
7 Ensure you have employer's liability insurance that insures the business against liability for injury or disease to its employees arising out of their employment. When you take out these insurances, discuss with the insurance companies to what extent these insurances will cover the type of situation where an employee, in order to defend the company, ends up in a altercation with an intruder or an individual who is committing a crime.
It is going to be interesting to see how the Corporate Manslaughter & Corporate Homicide Act 2007 evolves over time. The very first prosecution will be heard on 23 February (today). If an employee were to defend company property or another employee within the business and harm an intruder who is committing a crime, is there a duty of care owed by the company to that intruder or robber? If such a duty of care is owed, then the organisation may fall foul of the Act?
The key, therefore, is to undertake a thorough risk assessment of the business, implement measures and to monitor those measures.
Krishna Santra is an associate at Matthew Arnold & Baldwin