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Assault on James Shaw raises questions about employer responsibilities

Date: 20/03/2019

Green Party Co-Leader and Climate Change Minister, James Shaw was punched on his way to the Parliamentary complex last week.

The attack was reportedly unprovoked and involved a man jumping out of a van and shouting out political statements that were aimed at Shaw personally.

Shaw is reported to have suffered a black eye, bloody nose and facial lacerations. Although he went on to attend a cabinet committee meeting, he ended up visiting hospital for a precautionary check-up.

The assailant has been charged with injuring with intent to injure.

Politicians from across the divide have been quick to condemn the attack and have wished Shaw well. However, a lot of the focus has also been on whether changes or additional protections are required to ensure the safety of Ministers and MPs, given the high level of public access to politicians in New Zealand. 

While James Shaw is not an employee, the incident and the fact he was attacked on his way to work raises important questions about what obligations employers have to keep their employees safe, both inside and outside the workplace.

The starting point is that an employer (or any other person conducting a business or an undertaking) has an obligation to ensure, so far as is reasonably practicable, the health and safety of workers while they are carrying out work. An employer also has an obligation to ensure, so far as is reasonably practicable, that the workplace itself is without risks to health and safety.

So, does this extend to having to keep an employee safe on their way to and from work each day? In most cases, the answer will be no as the commute to and from work is unlikely to be regarded as work, and the route from home to work (usually) does not form part of the workplace.

There may be circumstances where an employer does need to investigate and potentially put in place protections for employees who, like Shaw, are in a high profile and public facing role and therefore are exposed to unique personal risks outside of work due to their close association with their work. These types of situations will be relatively rare.  

However, employers do need to ensure that the means of entering or exiting the workplace are safe.

This would include, for example, ensuring that parking facilities are safe and secure including that they are well lit and that unauthorised access is not permitted.

The obligation to keep employees safe would also apply in a situation where a public demonstration is occurring in front of the employer’s premises – something that is not uncommon in Wellington where organisations are commonly housed in the same buildings as government entities, Embassies and High Commissions. In this type of situation, an employer would need to take appropriate steps to keep its staff safe as they make their way into the workplace. If any risk cannot be appropriately contained, the employer may need to direct staff to stay away from work or work remotely.

What about other situations where an employee is actually working but is not on the employer’s premises?

An employer’s health and safety obligations kick in when an employee is working irrespective of where that work is being carried out. In other words, it doesn’t matter if the employee is in the office, is travelling between meetings or is doing something as simple as collecting the mail, the employer still needs to ensure, so far as is reasonably practicable, that its employees are safe.

What this means in practice will very much depend upon the activity the employee is undertaking and the risks associated with it.

To use the example of an employee going out to collect the office mail, the potential for harm is relatively remote so there will usually be little that an employer can do to further reduce or eliminate the minimal risk that does exist.

In contrast, workers are routinely required to drive and this presents a clear and obvious risk of harm.  There are a range of steps that an employer would be expected to take in order to minimise this risk in so far as is reasonably practicable. These could include ensuring all vehicles are fit for purpose, that workers are well-trained in safe driving practices, and that appropriate fatigue management policies are put in place and adhered to.

People are entitled to a safe place of work.  They are also entitled to walk to and from work without being assaulted because of the job they do. Unfortunately in any society, there are people who do not share the same values and sensibilities as most of us, and this was exposed last week.

It will be a shame if this leads to a tightening up of our access to politicians.  But if it leads to employers reviewing their policies and approach to health and safety, then some good may have come out of bad.