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The Trojan horse

Employers must take reasonable precautions to prevent workplace violence, but should they be liable for things beyond their control?

By Jeffrey R. Smith

There is a trend in Canadian jurisdictions that is focused on increasing awareness of violence in the workplace. This has been evident through new legislation passed by various governments dealing with legal requirements of employers to keep employees safe from violent acts or threats while at work. Though the rules vary by jurisdiction, it’s clear  the tolerance for workplace violence has become short.

Such protection for employees usually doesn’t just include threats from co-workers. It can apply to threats from non-employees who could gain access to the workplace. Many employers have security measures in place that make it difficult for non-employees to gain access to the workplace, but this isn’t always possible — and no system is perfect.

While it may be easier for an office environment to have locked doors and security passes, it’s not so easy to protect workers who are outside or deal with the public. For example, retail business are considered particularly high-risk for threats to employees. That’s why some jurisdictions have implemented measures that particularly protect vulnerable employees such as gas station attendants — like mandatory pay-at-the-pump practices and protective glass to reduce the risk of robbery.

Employers are also required to conduct risk assessments and have solid occupational health and safety policies. But even if these are done, the risk probably isn’t completely absent. If someone is really intent on getting into a workplace to harm an employee, most workplaces have ways for that person to get in. And if something happens, how liable should an employer be?

An employer can control safety and security measures implemented at the workplace, but it can’t control the actions of an outside individual. A risk assessment also may not be able to take into account all possibilities, particularly if someone acts unpredictably.

Let’s say in employer has a safety policy in place and requires employees to have a security pass to get into the office. However, someone gets in a door before it closes, or an employee lets that person inside, and that person assaults an employee. The employer immediately responds by tracking down the individual in the office and assisting the assaulted employee, but the incident has already happened.

Overall, the employer took measures and acted in the name of employee safety, but it still wasn’t able to completely keep the employee safe. Is the employer liable for not ensuring the employee was safe at work?

Safety is extremely important at workplaces, and employers must do everything reasonable and within their power to ensure employees are as safe as possible. But, unfortunately, sometimes taking all reasonable precautions doesn’t mean 100 per cent safety — no matter how secure your walls, sometimes a Trojan horse can find its way inside.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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