Assaulted at work (employment law - hypothetical)

Ned_led16

Re working in retail (fictious Bellbrig Co. Rockwot Ireland)
If i was racially abused and threatened with serious violence & then assaulted by a colleague what could i do...

I cant afford a solicitor - is there a no win no fee service available? can anyone recommend someone in Cork...

i have been advised to sign on the dole - look for another job
Also i was adv to write the boss a letter to request that we could be separated at work.

schemingbohemia

Ned_led16 wrote: »

Re working in a Kitchen/ cafe restaraunt in (fictious Bellbrig Co. Rockwot Ireland)
If i was racially abused and threatened with serious violence & then grabbed by the throat and thrown against an oven what could i do...

I cant afford a solicitor - is there a no win no fee service available? can anyone recommend someone in Cork...

i have been advised to sign on the dole - look for another job
Also i was adv to write the boss a letter to request that we are separated

Did you report the assault to the Garda? It seems you're mixing up a number of things. What do you want the end result to be?
Are you thinking of bringing a civil case against the person who assaulted
you? Or are you thinking of bringing a case against your employer for failing in their duty of care to you their employee? Or for constructive dismissal?

You're also saying this is hypothetical, well it seems detailed for something that didn't happen.

Ned_led16

schemingbohemia wrote: »

Did you report the assault to the Garda? It seems you're mixing up a number of things. What do you want the end result to be?
Are you thinking of bringing a civil case against the person who assaulted
you? Or are you thinking of bringing a case against your employer for failing in their duty of care to you their employee? Or for constructive dismissal?

You're also saying this is hypothetical, well it seems detailed for something that didn't happen.

What are the pros and cons of each... also forget the details ..... why would i choose any in preference to the other...

In regards to details i thought i must prepare a scenario in relation to an aspect of employment law i am interested in. However if its preferable to you lets say:
A was beaten up at work
A cant return to work because she is scared

What are the remedies? if your dont have 350 euro an hour to pay a solicitor. (i might have 350 altogether but not a couple of grand) unless maybe its worth borrowing if i know im going to get a pay out.)

sparkling sea

Ned_led16 wrote: »

What are the pros and cons of each... also forget the details ..... why would i choose any in preference to the other...

In regards to details i thought i must prepare a scenario in relation to an aspect of employment law i am interested in. However if its preferable to you lets say:
A was beaten up at work
A cant return to work because she is scared

What are the remedies? if your dont have 350 euro an hour to pay a solicitor. (i might have 350 altogether but not a couple of grand) unless maybe its worth borrowing if i know im going to get a pay out.)

If he/she was beaten up, its an assault s3 or s4. NFOAPA. Criminal Law
Can't return to work its Constructive Dismissal - Unfair Dismissals Acts.

Ned_led16

sparkling sea wrote: »

If he/she was beaten up, its an assault s3 or s4. NFOAPA. Criminal Law
Can't return to work its Constructive Dismissal - Unfair Dismissals Acts.

For constructive/ unfair dismissal - how can one approach this if you are on minimum wage?

Ken.

If "A" is in a union he could contact them for help. I remember when i worked on the buildings that one of the union newsletters said the union would provide solicitors in certain circumstances e.g unfair dismissal,injury at work.

If i remember it correctly the first meeting with the solicitor was free and if you had a case then you worked out a fee/percentage with them.

Ned_led16

Thanks
This leads me onto wonder why is no win no fee illegal in ireland?
How can this be avoided

ResearchWill

Ned_led16 wrote: »

Thanks
This leads me onto wonder why is no win no fee illegal in ireland?
How can this be avoided

No win no fee is not illegal in Ireland. Setting a payment based on a % of any award is illegal in certain circumstances.

In the situation you have set out there are a number of options, you can do one or more of them.

1 complaint to AGS re assault and I believe racial abuse.
2 claim from criminal compensation board re injuries due to criminal assault.
3 claim for unfair dismissals through the EAT, there is no cost awarded in the EAT so you must pay your costs.
4 sue the employer for the personal injury caused by the other employee, first through PIAB naming both the employer and the employee, and if necessary then issue court proceedings.

If the facts you outlined happened any good solicitor would more than likely take the case on no foal no fee.

Ned_led16

ResearchWill wrote: »

No win no fee is not illegal in Ireland. Setting a payment based on a % of any award is illegal in certain circumstances.

In the situation you have set out there are a number of options, you can do one or more of them.

1 complaint to AGS re assault and I believe racial abuse.
2 claim from criminal compensation board re injuries due to criminal assault.
3 claim for unfair dismissals through the EAT, there is no cost awarded in the EAT so you must pay your costs.
4 sue the employer for the personal injury caused by the other employee, first through PIAB naming both the employer and the employee, and if necessary then issue court proceedings.

If the facts you outlined happened any good solicitor would more than likely take the case on no foal no fee.

Now that is exactly what im talking about!

mm_surf

ResearchWill wrote: »

4 sue the employer for the personal injury caused by the other employee, first through PIAB naming both the employer and the employee, and if necessary then issue court proceedings.

Check with the solicitor on this. Vicarious liability only lies with the employer in the case of "work related" assaults.

i.e.
-assualted over argument about work, employer vicariously liable.
-assualted over support of different football teams, employer not vicariously liable.

PIAB would refuse to adjudicate in cases with two bodies named as respondants. Would need to go to court. Not sure if, as per normal cases, PIAB would have to be done first as a procedural matter.

MM

MagicSean

mm_surf wrote: »

Check with the solicitor on this. Vicarious liability only lies with the employer in the case of "work related" assaults.

i.e.
-assualted over argument about work, employer vicariously liable.
-assualted over support of different football teams, employer not vicariously liable.

PIAB would refuse to adjudicate in cases with two bodies named as respondants. Would need to go to court. Not sure if, as per normal cases, PIAB would have to be done first as a procedural matter.

MM

On the form for the injuriesboard you can name up to three respondants from what I remember.

ResearchWill

mm_surf wrote: »

Check with the solicitor on this. Vicarious liability only lies with the employer in the case of "work related" assaults.

i.e.
-assualted over argument about work, employer vicariously liable.
-assualted over support of different football teams, employer not vicariously liable.

PIAB would refuse to adjudicate in cases with two bodies named as respondants. Would need to go to court. Not sure if, as per normal cases, PIAB would have to be done first as a procedural matter.

MM

He was assaulted at work, I would say the employer was and is liable in negligence as he allowed a unstable person to be employed. As this is not a real life situation we are only looking at broad legal principles. Of course if it was real then proper legal advice should be taken as I advised.

PIAB often adjudicate a claim with more than one respondent, the PIAB form allows the naming of up to 3 respondents. Yes it means it more than likely the matter will result in autorisation, but there is noting legally stopping PIAB dealing with it, and in such a case where the employer is insured or has deeper pockets than the employee respondent, the employer may think it prudent to accept assement.

In fact if the matter did result in an autorisation then, the court proceedings would result in two seperate proceedings one for personal injuries against the employer the second for trespass on the person by the employee, at a layer stage both proceedings would be joined.

mm_surf

Just because the incident happened at work, does not make the employer liable. There has to be an occupational element.
Employer liability insurance is usually pretty clear on where the "line" lies.
RIDDOR guidance is good for gaining an insight into what is generally considered "occupational" and what is not.

The PIAB documentation allowing up to three respondants is probably for authorisation purposes, as you say. I can't think of any cases where PIAB could/would determine relative liability in the case of multiple respondants, it doesn't work that way (would predjudice court cases, perhaps?). Think how convoluted the issue of costs would arise from something like that ever ending up in court.

One probable "three-way" respondant scenario I can think of would be a road traffic accident. Victim hit by van driver Mr.A, employee of delivery company B, subcontracted to do deliveries by company C. Victim could potentially put a case in calling A,B&C as respondants.

H&S law is notoriously complicated.

MM
(H&S professional)

ResearchWill

mm_surf wrote: »

Just because the incident happened at work, does not make the employer liable. There has to be an occupational element.
Employer liability insurance is usually pretty clear on where the "line" lies.
RIDDOR guidance is good for gaining an insight into what is generally considered "occupational" and what is not.

The PIAB documentation allowing up to three respondants is probably for authorisation purposes, as you say. I can't think of any cases where PIAB could/would determine relative liability in the case of multiple respondants, it doesn't work that way (would predjudice court cases, perhaps?). Think how convoluted the issue of costs would arise from something like that ever ending up in court.

One probable "three-way" respondant scenario I can think of would be a road traffic accident. Victim hit by van driver Mr.A, employee of delivery company B, subcontracted to do deliveries by company C. Victim could potentially put a case in calling A,B&C as respondants.

H&S law is notoriously complicated.

MM
(H&S professional)

The employer must provide a safe system and place of work, employing a person who assaults other persons is de facto a breach of his obligation to other employees. While the employer may be able to bring up many many defenses, for example claim the person who was assaulted created the situation etc, never the less my advice still stands, and remember I said the OP could use 1 or more of the 4 remedies I put forward.

If the OP decides as one of his remedies to sue for person injuries, he will have to start by making a piab application, naming both parties. 2 he will need to take court proceedings again against both. More than likely the employee is a man of straw, so if the OP wishes to get any money he will need to sue the employer.

BTW

I see you H&S professional (Barrister at Law)

mm_surf

ResearchWill wrote: »

The employer must provide a safe system and place of work, employing a person who assaults other persons is de facto a breach of his obligation to other employees.

In so far as is reasonably practicable. Omnibuses in clapham & all that

If previous assaults happened, then certainly - de facto breach of duty of care.

No previous assaults? Then no breach exists. Employer cannot be held vicariously liable for criminal actions unless influenced or forced by the employer. This would certainly be the viewpoint of insurance companies.

Similar situation arises with stress claims. Causing stress is not an actionable incident. Mismanagement of said stress is.

I agree that its most likely a "straw man" incident.

RIDDOR guidance has its basis in law, and is applicable in Ireland as best practice. Page 22 of http://www.hse.gov.uk/pubns/priced/l73.pdf give examples.

I agree on your recommendations, btw.

MM

pirelli

Ned_led16 wrote: »

For constructive/ unfair dismissal - how can one approach this if you are on minimum wage?

lucyfur09 wrote: »

If "A" is in a union he could contact them for help. I remember when i worked on the buildings that one of the union newsletters said the union would provide solicitors in certain circumstances e.g unfair dismissal,injury at work.

If i remember it correctly the first meeting with the solicitor was free and if you had a case then you worked out a fee/percentage with them.

ResearchWill wrote: »

No win no fee is not illegal in Ireland. Setting a payment based on a % of any award is illegal in certain circumstances.

In the situation you have set out there are a number of options, you can do one or more of them.

1 complaint to AGS re assault and I believe racial abuse.
2 claim from criminal compensation board re injuries due to criminal assault.
3 claim for unfair dismissals through the EAT, there is no cost awarded in the EAT so you must pay your costs.
4 sue the employer for the personal injury caused by the other employee, first through PIAB naming both the employer and the employee, and if necessary then issue court proceedings.

If the facts you outlined happened any good solicitor would more than likely take the case on no foal no fee.

Labour Court would have a variety of remedies for this situation and union are happy to represent you in person at the hearings. join SIPTU and pay a month's subscription and they might represent you.....Not sure if there is a rule about joining before or after an incident.

You can represent yourself, labour court will facilitate you.

sparkling sea

Ned_led16 wrote: »

For constructive/ unfair dismissal - how can one approach this if you are on minimum wage?

I would recommend you contact The National Employment Rights Authority (NERA) and your local free legal aid board.

You could also get someone from Citizens Information to act as an advocate on your behalf.