The Scottish Executive Consultation Paper 'Protection of Emergency Workers'

The UNISON Scotland Response February 2004

Executive Summary

• UNISON Scotland welcomes the direction of the Executives proposals for protecting emergency workers. We are pleased that the Executive has recognised the nature and the scale of the problem in relation to violence against workers in the public services and that it is intent on bringing forward legislation that will afford greater legal protection to public service workers.
• However, UNISON Scotland is concerned that the proposed legislation will fail to provide adequate legal protection for all public service workers and that it will instead create unequal levels of legal protection for emergency workers and important non-emergency public service workers alike.
• UNISON Scotland believes that the emphasis of the proposed legislation should be on the activities the victim was carrying out at the time of an assault, not their occupation or the identity of their employer.
• UNISON Scotland believes that the risks faced by public service workers in both emergency and non-emergency situations are fundamentally the same. We believe that any attempt to make a distinction between assaulting a public service worker in an emergency situation and assaulting one in a non-emergency situation to be illusory.
• UNISON Scotland is also pleased that the Executive has committed itself to the introduction of a wider package of measures to educate the public and to reinforce the message that attacks on public service and other workers are totally unacceptable.
• We believe that these measures need to be more comprehensive than currently adopted by most public bodies in Scotland. We have published detailed guidance on the safety measures required.
• UNISON Scotland is pleased that the UK Home Office remains committed to ensuring that those who are injured/assaulted in the course of their work will continue to be fully compensated.

Introduction

UNISON Scotland welcomes this opportunity to respond to and comment on the Scottish Executive's proposals for protecting emergency workers.

UNISON is Scotland's largest trade union representing 150,000 members delivering public services. Across Scotland UNISON members save lives, build communities, support families, protect vulnerable people, care for children and much more.

Increasingly this essential work is being done in the face of a threat - the threat of violent attacks. UNISON Scotland takes the view that this type of behaviour is unacceptable in any context, but it is particularly unacceptable that valued public services workers should have to face this threat in the course of their employment.

Therefore, as users of public services, as public service workers and as ordinary citizens our membership has a direct interest in shaping any legislation, which is designed to protect emergency and public service workers in Scotland from physical assault.

This paper constitutes UNISON Scotland's response to the Scottish Executive consultation document ‘Protection of Emergency Workers'.

Background

In the Partnership Agreement ‘ A Partnership for a Better Scotland', the Executive made a pledge to reduce crime and combat the anti-social behaviour effecting Scotland's communities. An important part of this was the Executive's commitment to protect emergency workers from assault and obstruction.

In the past, because of the unusual demands and circumstances of their work, specific provisions have been made in statute law covering assault on, or obstruction of police officers. The Executive proposes to include new provisions extending equivalent protection to fire-fighters in the Fire Services Bill to be introduced to the Scottish Parliament next year.

The Executive believes that the particular demands of working in emergency situations justify the extension of a level of protection in these situations equivalent to that offered by the Police (Scotland) Act to emergency workers and anyone assisting them.

The Executive therefore proposes to bring forward legislation to give statutory protection for emergency workers and other persons assisting them in emergency situations in line with the Police (Scotland) Act.

This response offers UNISON Scotland's views on the Executive's proposals to introduce legislation which would make it an offence to assault, obstruct or hinder emergency workers (or any person assisting an emergency worker) in an emergency situation. It also offers UNISON Scotland's views on which groups of emergency workers should be covered and how an emergency situation might best be defined.

Responses

Which groups of emergency workers should be covered?

UNISON Scotland is pleased that the Executive has recognised the nature and the scale of the problem in relation to violence against workers in the public services. In addition, we are also pleased to note that the Executive is intent on bringing forward legislation that will afford statutory protection to all public service workers who assist in emergency situations.

However, UNISON Scotland is concerned that the proposed legislation will fail to provide adequate legal protection for all public service workers and that it will instead create unequal degrees of legal protection for emergency workers and important non-emergency public service workers alike.

UNISON Scotland believes that attacks on any staff delivering public services should be treated under the law as serious assaults, not just attacks on emergency workers. We believe that in practice it is impossible to make a distinction between the risks faced by an emergency worker (e.g. paramedic) and a non-emergency worker (e.g. a porter).

The experience of our membership and the results of recent crime surveys inform us that the most vulnerable workers are not necessarily emergency services workers - all workers who deal with the public are at risk. A recent British Crime Survey highlighted that care workers faced twice the national average risk of assault and nurses four times. This highlights the fact that it is not just emergency workers who are at risk - social workers and local government administrative staff also face significant risks.

As such, UNISON Scotland believes the proposed legislation to be too narrow in focus and urges the Executive to consider enacting legislation which would offer all public service workers, not only those whom it considers emergency workers, the same level of legal protection.

UNISON Scotland believes that the enactment of legislation, which would offer statutory protection to all public service workers, would emphasise the seriousness with which attacks against this important section of the workforce are viewed.

In addition, it would also help inform service users in every school, hospital and college that intimidating and violent behaviour towards public service staff will not be tolerated.

UNISON Scotland believes that the emphasis of the proposed legislation should be on the activities the victim was carrying out at the time of an assault, not their occupation or the identity of their employer.

As such, UNISON Scotland believes that it should be possible to draw up the proposed legislation so that no specific definition of ‘public sector worker' is necessary. Instead, the legislation could provide that the offence would be proven if the prosecution showed that the person attacked was providing a service to the public at the time the offence was committed. This would then be a matter for the courts to decide on the basis of the facts presented to them.

UNISON Scotland believes that this would be an inclusive rather than a restrictive approach to the proposed legislation. A body of precedent could be built up for the courts to draw on and the Crown Office could issue guidance on when it would be reasonable to presume, unless otherwise proven in court, that the alleged victim was of a class that the legislation covered.

The UNISON Scotland ‘Trauma 2003' report highlighted the unacceptably high incidence of cases where public sector workers had been subjected to abusive, insulting and threatening behaviour by groups of bystanders, e.g. where people on home visits have to run the gauntlet of groups gathered outside.

As such, UNISON Scotland is keen that the Executive give consideration to an additional aggravating offence of behaviour by a person or persons that threatens or alarms and is provoked by the occupation of the alleged victim.

UNISON Scotland believes that this would be consistent with the Executive's current prioritisation of the need to address anti-social behaviour and make communities safer and more welcoming.

How to define an emergency situation?

As noted above, UNISON Scotland believes that the emphasis of the new legislation should be on the activities the victim was conducting at the time of an assault, not on whether these activities where conducted during an emergency or non-emergency situation.

The membership of UNISON Scotland, who are employed throughout Scotland's public services, can testify that threats, abuse, assault and fear of such incidents have become a permanent and regular feature of their working lives. This is the case for emergency and non-emergency public service workers alike, irrespective of whether they are working in an emergency situation or otherwise.

UNISON Scotland is of the opinion that the risks faced by public service workers in both emergency and non-emergency situations are fundamentally the same. We believe that any attempt to make a distinction between assaulting a public service worker in an emergency situation and assaulting one in a non-emergency situation to be illusory.

Introduction of a statutory aggravation

UNISON Scotland is disappointed at the Executive's reluctance to introduce a statutory aggravation (replacing common law aggravation) to cover attacks on all workers delivering a public service. We do not agree with the Executive's assertion that the introduction of a statutory aggravation offence to cover attacks on public service workers would weaken protection for such workers.

We acknowledge the Executives fears over the potential loss of flexibility and the possibility of aggravated charges not being proceeded with under statute because they do not fit a restrictive statutory template.

However, UNISON Scotland believes that the dropping of a statutory aggravation charge maybe less of a risk in the proposed new offence. This is because the aggravating factor for assault on a public service worker is factual i.e. the identity of the victim and the capacity in which they were acting at the time. The offence could also be made one of strict liability and thus arguably easier to prove.

In addition, UNISON Scotland also believes that a statutory aggravation has the following advantages:

• It is in keeping with the current structure of Scots law and the trend towards a more consistent approach to sentencing.
• It would send out a clear signal that assaults and harassment of public sector workers will not be tolerated
• It would focus attention on the issue and might therefore strengthen the effect of any other moves taken by trade unions and employers to prevent such attacks and harassment
• It would trigger the keeping of statistics on the subject, which can be used to campaign for more preventative measures and increase public awareness of the seriousness of the offence.

Wider measures

UNISON Scotland is pleased that the Executive has committed itself to the introduction of a wider package of measures to educate the public and to reinforce the message that attacks on public service and other workers are totally unacceptable.

According to the 2002 British Crime Survey, 1.3 million people are attacked every year at work, and assaults are increasing by 5% every 2 years. The TUC survey of 5,000 safety reps found that violent assaults and threats are the fastest growing health and safety concern in the workplace. Violence was a concern for 30% of safety reps polled, making it the 5th biggest concern.

UNISON's own recent surveys have found that: 40% of health workers in Scotland had been attacked by a patient or a patient's relative in the previous 3 years, 61% of ambulance staff had experienced some form of violence over the previous year, and for parking attendants and traffic wardens the figure was 90%.

Clearly, work-related violence is a widespread problem. It effects all sectors and is a major occupational hazard. Security, social care, public transport, and nursing staff are the most at risk.

Violence at work is distressing, and dangerous. It is the most life threatening risk that workers can face and the most likely to lead to injury. Violence includes verbal abuse and threats. These may have long term health effects themselves, and may be indicative of the physical hazards to come. However, threats and verbal abuse are often trivialised or ignored by management.

There are no easy solutions to preventing or reducing violence at work because the precautions needed must be identified by a risk assessment and take account of the type and circumstance of the job. However, inadequate polices and procedures, a lack of training, unsympathetic managers, and inadequate support for the victims of violence are very common.

The risk of work-related violence is often predictable, especially, but not exclusively where previous incidents have occurred. This means that the risk can be assessed, minimised or prevented, and employers have clear legal duties to do this. Employers must and are legally obliged to reduce the risk of work-related violence to staff.

UNISON wants employers to work in partnership with safety reps and stewards to reduce the risk of violence at work, and has revised its guidance to help with negotiations. Violence at Work - a guide to risk prevention is on UNISON's website. The guide: defines violence; explains who is at risk; covers the employers legal duties, including risk assessing, with the use of appropriate case studies; looks at developing a policy; considers preventative measures, and includes a useful safety rep checklist and draft survey.

Specific safety plans will vary in different public services. For example UNISON Scotland's health service group has adopted a six-point plan as part of a campaign for zero-tolerance of violence towards staff in the NHS. The principles of this plan are:

• Employers and trade unions should adopt a joint Staff Charter, reminding the public that it is not part of a public service worker's job to be physically or verbally abused at work.
• There should be nation-wide adherence to standard definitions, recording and follow up of violent and potentially violent incidents, including verbal abuse, for all public service workers.
• Widespread use of agreed best practice in training courses on the management of violent or potentially violent incidents.
• The introduction of a ‘yellow and red card' warning system for members of the public who constantly abuse staff. These warnings could lead to the banning of individuals from premises if they persistently physically or verbally abuse staff.
• Clients, patients, tenants and relatives who physically abuse staff must be automatically charged and prosecuted by the Procurator Fiscal.
• Every public service worker in Scotland must recognise that, in addition to employer duties, every staff member has a duty to ensure their own safety and the safety of their colleagues, to use the reporting system for every incident, and accept that a culture of zero tolerance is essential.

UNISON Scotland is concerned that the results of our recent survey ‘Trauma 2003', showed that only 38% of our membership in the public sector had been provided with training in how to deal with violence in the workplace. Indeed, with the exception of Housing and Social Work, the research found virtually no evidence of training on this issue anywhere outside the Health Service.

This is clearly unacceptable, UNISON Scotland believes that training should be regarded as a key element in any response to violence in the workplace. As such, we urge the Scottish Executive to ensure that mandatory training in how to deal with violence in the workplace be introduced as part of the induction process for all public service workers in Scotland.

All of the above measures have resource implications for public bodies in Scotland. In particular safe staffing levels play a key role in providing safe working practices.

Criminal Injuries Compensation

UNISON Scotland is pleased that the UK Home Office remains committed to ensuring that those who are injured/assaulted in the course of their work will continue to be fully compensated as set out in the consultation paper ‘Victims of Crime'.

UNISON Scotland believes that any changes to this established system would have seriously undermined the credibility of measures in the Scottish Parliament to support the victims of crime and tackle assaults on public service workers.

Conclusion

UNSION Scotland welcomes the commitment by the Scottish Executive to enact legislation that will afford greater legal protection to Scotland's public service workers. However, we feel that there are areas where the proposed legislation could be strengthened not least by ensuring that all public service workers, emergency situations or otherwise, are afforded the same level of legal protection. Whilst also commending the Executive on the proposals to educate the public on the unacceptability of violence to public service workers we feel that these proposals could also be strengthened both in terms of the statutory protection and in the health and safety measures adopted by public bodies.