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OnlySeisan
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Do you use your karate at work?

I personally do on occassion. I work at a hospital and run into violent patients on my unit every once and awhile. Due to the nature of their conditions, most are not even aware they are being violent. Obviously nothing greivous is used, mostly control measures and lots of soft checking and limb entanglements. Generally we like them to leave healthier than they arrived. I've been punched a fair amount, kicked, grabbed and pushed.

My last encounter looked a lot like Iain Abernethy's karate gripping video. Luckily once I softly parried a punch to my chin and got his arms gently but firmly under control I was able to talk him down and get him into bed.

Does anyone else use their stuff for work and when was the last time you had to use it?

Tau
Tau's picture

Funny this thread should start today.

I work in Emergency Care, specifically a Minor Injuries Unit in which I'm frequently the most senior staff member on duty. Due to the discipline the odd problem does occur. The town in which I work does have a large unemployment level with associated problems such as drug abuse and violence. We don't actually have all that many problems. The last issue I had was over a year ago, actually just before one of Iain's residentials so I was giving the story them.

We had (by our standards) a pretty major situation yesterday and I spent the first two hours of my shift today giving a Police statement. You can probably appeciate that this is essentially social networking and so I'll be deliberately vague.

The short version is that a patient became very violent despite all attempts to reason with them. We believed that their arousal state was due to their presenting injury and this influenced how we responded. I endeavoured to use non-physical methods to resolve the problem. Minor victories in de-escalation were followed by massive escalation. The patient attempted to attack one of my colleagues. I'm pleased to report that despite massive damage to equipment, the only physical harm to any person is that I've taken a minor fingernail wound to my face. Rest assured it's not serious, I'm still gorgeous and the beard remains intact. This injury occured in me preventing a colleague from being hurt. Given that I didn't actively fight back at any point I'm pleased with the outcome. Fence concepts (thanks, Al) verbal de-escalation (thanks, Iain) and gentle elbow control (thanks, Rory) all played a part.

OnlySeisan
OnlySeisan's picture

Well done, but more importantly are you okay? Not only physcially, but mentally and emotionally okay.

I guess I shouldn't be surprised that another health care worker responded. I've read one statistic that health care workers are six times more likely to be physcially assaulted than the average person. Apparently there are a fair amount of people that leave the proffession due to work place violence.

Tau
Tau's picture

OnlySeisan wrote:

Well done, but more importantly are you okay? Not only physcially, but mentally and emotionally okay.

Oh yes. Thanks for asking.

My colleagues are very shaken, especially one who was the victim of a LOT of verbal abuse and threats. I didn't even realise I was bleeding until someone told me. It really is minor.

Where your question becomes relevent is that my fear is less actual violence in work but more the repurcussions. I can quote the law all day long and in this case, in another context, I'd have had no problem at all in physically subduing the attacker. But had I done so, I'd have (theoretically) acted within the law but I still have a duty of care to the attacker (who, remember, we believed was acting the way they were as a result of their injury) and I can see myself having to answer to my employer and/or my regulatory body. The trust can't be seen to endorse staff going outside their contract and skill set and bestowing harm upon a patient.

Iain Abernethy
Iain Abernethy's picture

Tau wrote:
Where your question becomes relevant is that my fear is less actual violence in work but more the repercussions. I can quote the law all day long and in this case, in another context, I'd have had no problem at all in physically subduing the attacker. But had I done so, I'd have (theoretically) acted within the law but I still have a duty of care to the attacker (who, remember, we believed was acting the way they were as a result of their injury) and I can see myself having to answer to my employer and/or my regulatory body. The trust can't be seen to endorse staff going outside their contract and skill set and bestowing harm upon a patient.

I’m pleased everything played out OK. This thread does bring out the important distinctions between employment regulations and the law.

I know it’s a very nuanced and complex issue, but just to put a marker in the sand it’s important to remember that employers can’t take away our legal rights. If a person need to act in self-defence during their employment they have the same legal rights as every other citizen.

Use of force to carry out a duty is far less clear cut, but use of force to protect oneself is firmly established by the law of the land, and that right to use force to protect oneself can’t be removed by any employment contract.

It is possible that the situation could arise where an employee (social worker, school teacher, airline staff, nurse, doctor, etc) has had to use force to protect themselves and their employer takes a very dim view of that. If the law of the land states that have acted legally, but their employer still wished to take disciplinary action, then that employer would be placing their internal polices over the law. It would be an almost impossible position for them to defend. A good employee representative (I was one for 10 years) should easily be able to protect those they represent from any disciplinary action if they acted in self-defence during the course of their employment.

If we run with a hypothetical case, let’s say a nurse had to act in self-defence because a patient attacked them without provocation or warning. The nurse picked up a bed pan and KO’d the patient with it. The patient suffered injuries and did need treatment. The police are called and they conclude that it was self-defence on the part of the nurse (the force used was both necessary and reasonable), and that the assault by the patient will result in the patient facing precaution for that assault. If the hospital managment then was to state that hitting someone with a bedpan was not something they could endorse and hence disciplinary action needed to be taken, you’d then have a situation where the law of the land said one thing, and the internal rules said another. It should be easy for any representative (legal or union) to tear a big hole in that.

That’s at the extreme of course, but I think it a point worth making because people should never feel afraid to protect themselves simply because an assault happened during employment. The same laws apply.

It gets way more complex than that when it comes to the use of force during duties when it’s not self-defence (or not clear cut as being self-defence) and hence internal procedures will apply (prison service, teachers, NHS staff, airline staff etc). My indirect experience of training in these areas is that it’s generally not as good as it needs to be, and yet staff are nevertheless expected to deliver “textbook perfect” performances in high stress situations.

The training needs to be good enough to ensure safety of employees (a legal duty) and the ability to enact duties as required. With my old shop stewards hat on, a failure to provide sufficient training would help make a very strong case that the employee was not at fault when they failed to perform as desired.

In the UK, the Health and Safety at Work Act 1974 makes it clear that the employer has a legal duty to ensure the safety of their employees at work:

(1)It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

This includes giving sufficient training:

(2)Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular—

(c)the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

There’s therefore a legal duty to prove training to ensure, as far as is reasonably practical, the safety of all employees. If the threat of violence exists, that needs to be sufficently addressed.

It could be a very interesting thread this one!

All the best,

Iain

Leigh Simms
Leigh Simms's picture

Loving the direction of this thread!

I studied employment law for a while and find it really fascinating as a whole. Obviously I have an added interest in the self-defence/using force side of workplace regulations. It seems that Iain's practical experience is in line with my research and that sadly I have met many employees who are almost "scared of defending themselves" with any actually useful amount of force (especially impactive/striking). 

Iain Abernethy wrote:

If we run with a hypothetical case, let’s say a nurse had to act in self-defence because a patient attacked them without provocation or warning. The nurse picked up a bed pan and KO’d the patient with it. The patient suffered injuries and did need treatment. The police are called and they conclude that it was self-defence on the part of the nurse (the force used was both necessary and reasonable), and that the assault by the patient will result in the patient facing precaution for that assault. If the hospital managment then was to state that hitting someone with a bedpan was not something they could endorse and hence disciplinary action needed to be taken, you’d then have a situation where the law of the land said one thing, and the internal rules said another. It should be easy for any representative (legal or union) to tear a big hole in that.

That’s at the extreme of course, but I think it a point worth making because people should never feel afraid to protect themselves simply because an assault happened during employment. The same laws apply.

The above bolded paragraph is a great summary that I feel many employees need to be aware of. 

Tau
Tau's picture

Thanks Iain and Leigh for your input.

In the case I've described, this isn't hypothetical. Charges have been pressed by the trust. I remain grateful for keeping this vague/ambiguous, however.

Iain's points I know, understand and completely agree with. I've done my own studies into self protection law and risk management in the past couple of years. We do get conflict resolution updates but (in my opinion) they are wholly inadequate and I've expressed as much. Flashing up a Powerpoint slide on LEAPS just isn't sufficient. It's like me telling you I can teach you to carry out a wrist injury examination and teaching this by flashing up Powerpoint slide on the order of bones in the hand and then expecting you to be competent!

I should add that the trust have stated that they would endorse us acting in such as way as to protect ourselves or our colleagues by use of force, so long (of course) as it was reasonable.

As an aside, you've both looked at employment law but surely the Human Rights Act (positive obligation to preserve life) also plays a part.

The way that I look at it and the way that I've expressed it to my manager is like a triangle of priorities. Three levels. At the top is the Law of the Land. My regulator and employer cannot override this, as Iain has stated. Underneath that is the regulator. In my case this is the Nursing and Midwifery Council who have the power to "strike me off" the register if I breach my professional code. Underneath them is my employer who can't override the ruling of the regulator. I'm sure other professions will have a similar set up.

So in some parallel universe in which I go out drinking and starting fights, the Police charge me with GBH or somesuch. This is automatically in breach of my professional code and so I get struck off. Being struck off means my employer will therefore also sack me. And rightly so.

Going the other direction is (IMO) legally clear-cut otherwise more murky. I'm also obligated to protect the reputation of my employer and profession.

So yes, in the hypothetical situation in which this Nurse wallops the patient with a bedpan (ours are cardboard, I guess yours are metal wink) the Police could find me acting completely within the law. But my local papers report the incident in their usual utterly-factual and subtle manner and my employer suspends me pending investigation. I don't want that, whatever the outcome. I don't want my employer changing my role or place of work. I don't want the loss of pay from unsocial hours. And to be honest, you can't blame any employer for not giving people carte blanche to act with force without considering repurcussions.

We've then "without provocation or warning." What if the patient claims their assault was provoked? Also, what if the patient was acting the way that they were for medical reasons such as dementia or hyperglycaemia. The Police have made such errors in the past though I believe have learned from them.

Iain Abernethy
Iain Abernethy's picture

Tau wrote:
As an aside, you've both looked at employment law but surely the Human Rights Act (positive obligation to preserve life) also plays a part.

The Human Rights Act (which, although often much maligned, guarantees things that any sound society would wish for i.e. a fair trial, the right to have elections, the right to be free from slavery, freedom from torture, freedom of speech, freedom of religion etc.) is obviously in-keeping with the other laws.

When it comes to the right to life, that right is not absolute. The act states the following:

Article 2: Right to life

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary

in defence of any person from unlawful violence

in order to effect a lawful arrest or to prevent the escape of a person lawfully detained

in action lawfully taken for the purpose of quelling a riot or insurrection

As we can see, there is a duty on the state to protect the life of its citizens (i.e. there needs to be laws against murder, a government can’t kill people without a trial, etc.). It would follow that the government also needs to put laws in place that ensure the lives of employees are protected from acts or omissions of employers (i.e. The Health and Safety at Work Act). Talking specifically about the NHS, they are a public body and hence they too have to abide by the Human Rights Act (it does not just apply to central Government, but all branches of it). On the other side, killing someone when you acted in self-defence would not be contrary to of the Human Rights Act.

From my amateur perspective, the Human Rights Act simply put an onus on government to have the kind of laws we have anyway. It originates from the “Convention for the Protection of Human Rights and Fundamental Freedoms” which came in to force shortly after WW2. It is international law that prevents individual governments from acting as totalitarian dictatorships and ensures personal liberty and freedom from oppression. Thankfully our country ascribes to those values and hence we have laws in place to guarantee these things. I think it is those laws we should really be referring to, as opposed to the overarching requirements of governments singed up to the act.

All the best,

Iain

Iain Abernethy
Iain Abernethy's picture

Tau wrote:
As an aside, you've both looked at employment law but surely the Human Rights Act (positive obligation to preserve life) also plays a part.

The Human Rights Act (which, although often much maligned, guarantees things that any sound society would wish for i.e. a fair trial, the right to have elections, the right to be free from slavery, freedom from torture, freedom of speech, freedom of religion etc.) is obviously in-keeping with the other laws.

When it comes to the right to life, that right is not absolute. The act states the following:

Article 2: Right to life

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary

in defence of any person from unlawful violence

in order to effect a lawful arrest or to prevent the escape of a person lawfully detained

in action lawfully taken for the purpose of quelling a riot or insurrection

As we can see, there is a duty on the state to protect the life of its citizens (i.e. there needs to be laws against murder, a government can’t kill people without a trial, etc.). It would follow that the government also needs to put laws in place that ensure the lives of employees are protected from acts or omissions of employers (i.e. The Health and Safety at Work Act). Talking specifically about the NHS, they are a public body and hence they too have to abide by the Human Rights Act (it does not just apply to central Government, but all branches of it). On the other side, killing someone when you acted in self-defence would not be contrary to of the Human Rights Act.

From my amateur perspective, the Human Rights Act simply put an onus on government to have the kind of laws we have anyway. It originates from the “Convention for the Protection of Human Rights and Fundamental Freedoms” which came in to force shortly after WW2. It is international law that prevents individual governments from acting as totalitarian dictatorships and ensures personal liberty and freedom from oppression. Thankfully our country ascribes to those values and hence we have laws in place to guarantee these things. I think it is those laws we should really be referring to, as opposed to the overarching requirements of governments singed up to the act.

All the best,

Iain

Ian H
Ian H's picture

I was going to go with the "I don't have to wrestle people to the ground for a living, but I know people who do, and who also do karate, and they use it in their work" sort of response, and toss in a bit of Funakoshi's "put karate in everything you do" precept, but ... 

... this has taken on a very real, specific tone. To the legal side of things, I'll simpy add that one should be aware of the law(s) in force where you work.  Don't rely on general or generic notions, or advice from people who live elsewhere (and who may be operating under a very different set of rules.)  Whether or not one is a unionised worker is often of great importance, as well ... the rules can be very different, or rather similar, "depending

Tau wrote:
So yes, in the hypothetical situation in which this Nurse wallops the patient with a bedpan (ours are cardboard, I guess yours are metal) the Police could find me acting completely within the law. But my local papers report the incident in their usual utterly-factual and subtle manner ...

Your bedpans may be made of cardboard, but your words are made of irony.

OnlySeisan
OnlySeisan's picture

It's interesting to hear the differences in UK law versus US law. The labor laws in my state pretty much allow any employer the ability to fire anyone for anything other than descrimination. I could be cleared criminally, and I could still lose my job. Not to mention the civil lawsuit that would be brought against me by the family of the patient.

Iain Abernethy
Iain Abernethy's picture

Ian H wrote:
one should be aware of the law(s) in force where you work.  Don't rely on general or generic notions, or advice from people who live elsewhere (and who may be operating under a very different set of rules.)

OnlySeisan wrote:
It's interesting to hear the differences in UK law versus US law. The labor laws in my state pretty much allow any employer the ability to fire anyone for anything other than discrimination. I could be cleared criminally, and I could still lose my job. Not to mention the civil lawsuit that would be brought against me by the family of the patient.

The laws certainly change as you move around the globe and I agree it is important to be aware of the law in the locality in which you are based.

Thankfully here in the UK I could not see any attacker (who had been ruled such in a criminal court) getting anywhere with a civil suit. It would be thrown out pretty quickly. With regards to being sacked, that would still be possible in the UK, but any company / organisation that had a defined disciplinary procedure would have difficulty saying, “Although the law of the land has found you acted reasonably and out of necessity, we disagree.” It would also be difficult for an employer to defend the sacking if taken to an industrial tribunal.

The vast majority of employers would be highly unlikely to try to sack an employee who got attacked on the job. Firstly, it goes against human decency. Secondly, it would be a legal minefield. Thirdly, the public reaction would be negative publicity that any firm or organisation could do without. Finally, they have a legal duty to ensure the health (mental and physical) and safety of their employees. If an employee was attacked, then questions will be asked about the employer’s policies and procedures by the Health and Safety Executive.  

Here in the UK, you see signs everywhere warning that verbal or physical threats against staff will not be tolerated and persecution will be sought. Generally speaking, employers do their best to look after staff; especially when they work in fields where verbal or physical violence is more likely.

I know there will be many exceptions, and there are defiantly some terrible employers out there (which is why we have laws in place to protect employees from them). However, we need to be careful about emphasising these exceptions to the point where we may inadvertently present them as the norm. The inescapable bottom line is that everyone has a legal right to protect themselves from assault, and no employee has the power to take away that right.

People should never feel like that have to choose between physical assault and keeping their job.

All the best,

Iain

Marcus_1
Marcus_1's picture

This is something I have a lot of interest in having been a use of force instructor to staff in a previously employment and now, having moved to something else where the law is very much in play.

In the UK we do have lots of protection by the law when it comes to self defence, for a start there is civil law, then there is Section 3 Criminal Law Act (" 

(1)A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2)Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose." ) In this piece of Law, I feel that in stopping someone attacking/assaulting you or another person then you are acting within this piece of legislation as you are preventing a crime - so long as the force used is reasonable in the circumstances.

Then there is S.76 Criminal Law and Immigration Act 2008.  There is loads of information held here : http://www.cps.gov.uk/legal/s_to_u/self_defence/#Reasonable_Force

As it stands, any person can use force in order to prevent a crime provided it is reasonable in the circumstances.  As Iain has said in previous podcasts, in the UK the Law does not expect a person to judge to a niceity the amount of force used in the heat of the moment.  However, once a person is restrained or the person defending themselves is able to make good an escape, then they should no longer be using force on that person.

Personally, avoidance is always best and the use of force is always the last option - after all, there is not las, last option is there

Marcus_1
Marcus_1's picture

http://www.bbc.co.uk/news/uk-england-33094807

Sadly, another example of some one being seriously hurt by a knife attack in the work place.  Being married to a school teacher, I have something of a vested interest in this, my wife is adament that she is not allowed under any circumstances to lay hands on a kid at work, I keep telling her that in this scenario, she is well within her rights to defend herself, up to and including the use of whatever force is necessary to stop the knife weilding maniac to stop.  In my previous emplyment, I was asked a lot of times (mainly by civilian workers), "If a lad comes at me with a knife, what am I allowed to do?"  My general answer was to get the hell out if you can, positioning is everything, keep yourself close to the exit and do not let the idiot with the knife block the escape route, awareness is key. If the exit is blocked then use what ever you can, a chair is a good tool to maintian distance between you and that knife, alternatively, if there is something you can use to hit them with (fire extinguisher for instance) then use it.

Failing all else, you have to do something as doing nothing at this stage ends badly.

OnlySeisan
OnlySeisan's picture

Today, a patient hit me in the face with a telephone. Should have taken the hint. He was being unusually quiet, when he was previously just cursing at me. I was hoping he'd come to his senses. Apparently not.

I'm okay, just a mark on the face. Figured I share since this thread is still alive.

Iain Abernethy
Iain Abernethy's picture

Marcus_1 wrote:
In my previous employment, I was asked a lot of times (mainly by civilian workers), "If a lad comes at me with a knife, what am I allowed to do?"

I’ve had discussions like that too. “What should I do?” is a tactical question. “What am I allowed to do?” is a legal one. In answer to the second question I would say, “You have an unequivocal legal right to ensure your safety. You are allowed to do whatever you need to do to keep yourself safe and so long as you acted honestly and instinctively – which is what the law defines as “reasonable” – the law is fully behind you. You don’t need to worry about that. You are allowed to protect yourself. Your employer can’t override the law or tell you any different. Your employer also has a legal duty to ensure your safety and should have no policy in place that overrides your legal rights or puts you in danger. Just do what you need to do. It’s allowed.

This is the worry I’ve raised in previous posts in this thread. People can hesitate or fail to act for fear of getting in to trouble with the law or their employer. If you are legitimately acting in self-defence then the law and your employer should support that action. And in the vast majority of cases I would say that will be the case.

I get the worry though and it concerns me greatly that both perception and ill-informed policy would cause good people to hesitate when their well-being is threatened.

All the best,

Iain

Marcus_1
Marcus_1's picture

Big thumbs up Iain, people need to realise that to simply not act is effectively going to end badly.

Tau
Tau's picture

I should add that "acting" in defence isn't necessarily physical. In my specific case I was acting in defence of others from a relatively early stage in terms of maintaining space, being a physical presence, verbal disuation and so on. In hindsight it was never going to work but hindsight is a wonderful thing.

Ian H
Ian H's picture

Iain Abernethy wrote:
People can hesitate or fail to act for fear of getting in to trouble with the law or their employer. If you are legitimately acting in self-defence then the law and your employer should support that action. And in the vast majority of cases I would say that will be the case.

Emphasis added.  The fact that employers don't always do what they should for their employees unfortunately creates doubt in the minds of many employees that their own employer might just turn out to be that sort if and when "stuff happens" to them on the job.

Let's assume that most of the readers and posters on this site will be informing themselves of the relevant self-protection laws in force wherever they live.  If someone has additional rules, regulations or other employment-specific codes of conduct that apply when he is "on the job", then hopefully his employer is providing good and frequent training in that regard.

Either way, I'd suggest that fellow make employment-rule-related training part of his own training regimen, so that he's ready with a response which is both practical/effective and suited to his employment requirements.  The more we can remove any doubt about the employer having a positive response to our likely self-defence techniques, the more we can focus on "snapping into action" when bad things are about to happen (or are happening) rather than freeze up in self-doubt about which otherwise-legal techniques will get us fired and which won't.

Iain Abernethy
Iain Abernethy's picture

Ian H wrote:
Emphasis added.  The fact that employers don't always do what they should for their employees unfortunately creates doubt in the minds of many employees that their own employer might just turn out to be that sort if and when "stuff happens" to them on the job.

I totally get where you are coming from and, as I hope I’ve made clear in previous posts, I accept that employers don’t always do as they should. However, that is a failing on the part of the employer and it should not be passed on to the employee. The employee has a legal right to protect themselves and an employer can’t remove that. If the employer tries to, we should not say that it’s then up to the employees to navigate that; when it is clear that the employer would morally and legally be in the wrong.

Likewise, the employer has an inescapable legal duty to ensure (as far as is reasonably practical) the health and safety of those in their employ. Again, if they fail in that, it is the employer who is at fault. We should not be saying the employee has to deal with the legal failings of their employer.

Ian H wrote:
Let's assume that most of the readers and posters on this site will be informing themselves of the relevant self-protection laws in force wherever they live.  If someone has additional rules, regulations or other employment-specific codes of conduct that apply when he is "on the job", then hopefully his employer is providing good and frequent training in that regard.

I agree. As mentioned, they legally need to provide training, and the employee could be found negligent if that training is not up to scratch. During my decade as a senior shop steward I was aware of, and involved with, many such cases.

Ian H wrote:
Either way …

I’d advise not accepting “either way”. The law is very clear. There is no choice on the matter. The employer has an inescapable legal duty to ensure the health and safety of their employees. If they are not doing that then that needs challenged … for both the sake of the employer and the employee.

I understand that financial pressure will cause some to want to “keep their heads down” and “not rock the boat”. I get that. However, in doing so they are knowingly engaging in a situation that puts them and their fellow employees at risk whilst simultaneously taking on the burden for fear of losing one’s job. That’s not acceptable and there are laws and institutions in place to protect employees from such things (Unions, Health and Safety Executive, Industrial Tribunals, Legal protection for Whistle Blowers, etc).

In my experience, the vast majority of employers do care about their employees and do wish to fully comply will all legislation (it’s both moral and good business). However, the unscrupulous minority do need challenged.

Ian H wrote:
I'd suggest that fellow make employment-rule-related training part of his own training regimen, so that he's ready with a response which is both practical/effective and suited to his employment requirements.  The more we can remove any doubt about the employer having a positive response to our likely self-defence techniques, the more we can focus on "snapping into action" when bad things are about to happen (or are happening) rather than freeze up in self-doubt about which otherwise-legal techniques will get us fired and which won't.

Employment specific training is vitally important, but the bottom-line is that an employer has no right to sack you if you do legally protect yourself from assault. The employer can’t override your legal rights. Training is de-escalation can be hugely helpful. If there is a potential need to retrain others, then training in how to do that safety (for all concerned) is important i.e. police, prison service, airline crews, etc. However, if during such an employment related activity the employee found themselves in danger then it is the law of the land that applies above all.

If a police officer, for example, were to force a person to the ground and handcuff them – where the person was fully complying and had no history of violent behaviour – then that could be deemed excessive, not in keeping with training, and hence disciplinary action could be taken. Additionally, the recipient of the unnecessary force could claim assault and the officer may find themselves being prosecuted under the law of the land. That would be an example of failing to comply with employment based training.

Let’s say that the same police officer was attacked by an armed gang of four. During a severe beating the officer was able to clamp their teeth onto the nose of one of them and bit it clean off. Shortly afterward others came to the officer’s aid and they were taken to hospital. Biting off a person’s nose may not be an “approved technique” for everyday control and restraint. However, the officer has the right to turn to the law of the land to show that what he did was both necessary and reasonable in the extreme circumstances they found themselves. That action is therefore “legal” and hence trying to dismiss that officer (which would be unlikely anyway in my view) on the basis of legal action taken to ensure their safety has no firm basis and would be easily changed.

To give another example, let’s say that a school teacher has been given training in de-escalation should pupils become aggressive. Let’s also say that the training recommends immediately leaving the area to seek assistance if safe and possible. On a given day, a large teenage pupil tells the teacher to f-off and verbally threatens them. There is no one else present in the class room and no other pupils are in harm’s way. The teacher and the pupil are at other ends of the room and the teacher has an exit close by.  Instead of leaving and seeking assistance – as the training recommends – the teacher sprints across the class room and forcibly restrains the pupil. The pupil suffers injury as a result.

Legally, this was not “self-defence” because the use of force was not necessary. It is also outside the agreed procedure. That teacher could find themselves being disciplined and possibly sacked.

Let’s change the scenario so the pupil threatens the teacher in a store cupboards while blocking the exit. The teacher has an honestly held belief – and good reason to hold that belief – that an attack is imminent, they therefore punches the pupil in order to escape. While punching pupils is not part of the “agreed procedure” it is nevertheless a legal action in this instance under self-defence law. And it would in all probability be supported by the teacher’s employers as such. However, let’s say that it wasn’t and they decided to try to sack them based on that action.

A half decent employee representative would point out that the action was legal and therefore by definition necessary and reasonable. If the employers were to disagree and sack the teacher (which would be a very stupid thing to do) then the case would no doubt be taken to an Industrial Tribunal. At such a tribunal, the case would be put forward that the Teacher’s employers had dismissed them for what was a legal action. If the employers were to argue that that legal action was nevertheless outside their procedures, then the immediate retort should be, “well in that case your procedures are illegal and hence not fit for purpose”.

What is likely to happen is that the legal advisors to the employers will make clear to them ahead of time that the Tribunal is almost certain to find in the teacher’s favour (and hence reinstate, award compensation, etc.) and hence such a foolhardy course of action is unlikely to be pursued.

Ian H wrote:
when bad things are about to happen (or are happening) rather than freeze up in self-doubt about which otherwise-legal techniques will get us fired and which won't.

I agree totally about the need to remove worry (and more importantly not add to it). And the way we do that is by making clear that the law is clear:

NO legal justifiably action to pretect yourself can justifiably get you sacked.

As a slight aside, there are no definitions of “legal techniques”. Pretty much everything could be legal or illegal depending upon the circumstances.

Good thread this one! It’s bringing together my current life as a fulltime martial artist, and my former life as a (pretty much) fulltime shop steward and safety representative.

All the best,

Iain

JWT
JWT's picture

A very interesting discussion.

A problem for all staff who are in environments where they may need to use force to protect themselves or others is not so much what the law enables and entitles them to do, but what the law allows the employer to do. An employer can suspend or sack an employee they feel acted inappropriately (and in the case of teachers even cause them to be placed on the PoCA list) even if the Police feel there is no case to answer. In such instances the employee or former employee has to go through a lengthly tribunal process to prove unfair dismissal. It is  fear of the consequences of non legal interpretation by employers that can cause inaction and stress both before, during and after incidents.

A number of years ago, before the then government provided clearer guidance on how teachers could use force, I sent the following article to the Secretary of State for Education and his Shadow counterparts.

Introduction

The national news allows particularly horrifying accounts of local events to reach each and every one of us on a regular basis.  Such constant exposure can lead to a distorted perception of the nature and prevalence of violent crime, but with the recent spate of violent assaults on young people in Britain and the increasing number of teenage deaths due to knives and gang crime, we cannot ignore the evidence that violent behaviour amongst school children is a national phenomenon.   All staff working in education are affected by this.  Schools are not islands of tranquillity in a sea of troubled youth and there are dimensions of school life that we will never see clearly.  School staff are more likely than ever to have to either defend themselves or intervene to prevent an escalation of violence between pupils in their work places, it is thus vital that they know precisely what the law allows them to do and what training they are entitled to receive.

The Legal Framework

It is important to note that although Section 93 of the Education and Inspection Act 2006 clarifies the law, it does not really give teachers any powers (or information) that they did not already have under previous legislation and guidance.  All it actually does is confirm the existing rights and obligations  contained in Section 3 of the Criminal Law Act 1967 (which remains the most important document for how much force anyone can use in any situation),  Article 2 of the Human Rights Act 1998 (which sits above all other statute law), the Children Act 1989, and Article 3(1) of the United Nations Convention on  the rights of the Child 1991.

Article 2 of the Human Rights Act 1998 states that “Everyone’s right to life shall be protected by law.  No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.” 

Section 3 of the Criminal Law Act 1967 states that any person may use such force as is reasonable in the circumstances in preventing a crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

Article 3(1) of the United Nations Convention of the rights of the Child states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.”

Section 1.83 of Volume 4 of the Children Act 1989 states that “Physical restraint should be used rarely and only to prevent a child harming himself or others or from damaging property.  Force should not be used for any other purpose, nor simply to secure compliance with staff instructions.”

Despite DCSF and union guidance, many staff in schools are still likely to be concerned about using physical force: firstly because of the risk of harming children; secondly for their own safety; and thirdly for fear of losing their job and being placed on the POCA list.  The issue is not so much can teachers and school staff use force against pupils, nor when can they use force, but “how much force is reasonable in the circumstances?”  What is reasonable force?

Reasonable force is not a fixed quantity and the law sensibly has not constrained it as such.  Each case is weighed by the CPS and (if necessary) by a trial on an individual basis.  Despite this a matrix has been built up from case law decisions that allows policy makers and trainers a clear framework from which to instruct staff.  Any force applied must be both necessary and proportionate in the circumstances if it is to be considered as reasonable.  According to Ashworth’s Principles of Criminal Law, “The standard of Proportionality is best defined as what is reasonably proportionate to the amount of harm likely to be suffered by the defendant, or likely to result if the forcible intervention is not made”.[1]  Many school policies still in existence  (and current DCSF guidance) use the term “minimum force” but this term does not exist in statute or common law, nor is it mentioned in the Children Act 1989 or any subsequent legislation.  Any policy referring to “minimum force” is more restrictive than the law requires and consequently risks putting staff (and children in their care) in danger, firstly by making them feel unable to act when the need for force arises, and secondly by resulting in an inadequate restraint or intervention being used that causes the injury of either a child or a member of staff.  Such an unnecessary caution will increase the margin for error of judgement as it will make staff more concerned about disciplinary action by their managers rather than the best interests of the child.  As a result such guidance falls foul of the obligation to promote life, the ability to use reasonable force and, importantly, the need to act in the best interest of the child.

Following an incident, school staff can be subject to more than one investigation should there be a complaint made with respect to their actions.  The Police will investigate to ascertain as to whether the force used was reasonable or not and press charges if they are not satisfied and believe they can prove their case.  The school itself is also likely to investigate the staff involved as part of a disciplinary hearing regardless of the CPS verdict.  It is this internal investigation that makes it essential that school governors, Headteachers and senior management teams have had training with respect to the law.  There have been instances of Headteachers recommending  staff cleared of using excessive force by the CPS onto the POCA list because Social Services have recorded the individual as causing “significant harm” ( a criteria for establishing abuse) to the child.  These actions that would not have occurred had they had enough legal training to be aware that “significant harm” is neither  a criminal  nor civil offence but a term used under Section 47 of the Children Act 1989 to commence care proceedings or to apply to a court under Section 31 of the same act to remove a child from its parents into care – neither of which have any application with regard to the use of force within schools.  Fortunately a number of these falsely attributed Schedule One offences have been over-turned, but at unnecessary financial, psychological and social cost to the staff and schools concerned.

Schools do not exist in a vacuum and comparative advice in the field of Care Homes may be of great use to school when formulating their policies.  In 1997 the then Chief Inspector of Social Services, Sir Herbert Laming stated that “ the guidance in LAC(93) is clear that staff can and must intervene immediately to try to prevent young people leaving the children’s home when there are grounds for believing that they are putting themselves or others at risk or are likely seriously to damage property…   …existing guidance is clear that in certain circumstances physical restraint can and should be used.  It is also reasonable to bolt a door temporarily to restrict a young persons’ mobility, or in order to win some time to call for help from other staff.”   

The Human Rights Act 1998 is the overriding legal document with respect to what can and cannot be done to another person.  Article 2 outlines the right to life, Article 3 the prohibition of torture and Article 5 the right to liberty and the security of person.  In the past there have been misguided attempts to use the Act to illustrate that physical intervention, restraint and the detention of children are illegal.  The use of pain (as a last resort) as part of a process of restraint cannot be classed as torture if the restraint was legal.  It cannot be classed as corporal punishment since the purpose of corporal punishment is to punish a person through physical force for an action that has broken rules, whereas restraint is the positive application of force to reduce injury to another person or to prevent an injury or criminal act occurring.  In the case of Stewart v United Kingdom (1984) it was ruled that “The basis for any legal decision regarding the use of force will be its proportionate use with regard to the achievement of its permitted purpose.”  So long as the force used is necessary and proportionate to the harm it is intended to avoid, there is no question as to whether it is illegal.  Where the risk of harm is severe, the need to move from holding to pain compliance techniques can also be seen as consistent with the positive obligation to preserve life required by Article 2 of the Human Rights Act.  In the instance referred to above by Lord Laming, detention of a child is justified because of Article 2, as is physical intervention, hence the stress that “staff can and must intervene.”

The Case for Physical Intervention, Holding, Restraint and Distraction Techniques

There is a clear justification for the use of physical intervention, restraint, and, in extreme situations, distraction techniques.  I will draw three simple examples to illustrate the importance of physical intervention.

Example One

A fifteen year old male child (A) is sitting astride another child (B) hitting them in the face in a classroom during break time.  A female member of staff on duty (C), in her mid fifties happens upon the scene. C is not strong enough to pull child A away (who due to his increased heart rate and adrenaline release is likely to have aural and visual exclusion), and even with the aid of a second staff member (D) is unable to pull A away.   In fact A is likely (given his mental state) to attempt to hit C as she tries to interfere. As a result C applies a distraction technique (in this case a  strike) to A’s thigh that allows her to gain a better hold on child A, thus shortening the time taken to achieve a safe restraint position for child A and thus reducing potential injury to herself and Child A, while also removing the danger to Child B. 

If C had not intervened then she would be failing in her duty of care to the child and acting in breach of Article 3(1) of the United Nations Convention on the rights of the child and potentially contravening by omission Article 2 of the Human Rights Act as the life of child B could well be at risk. Research has shown that the longer a struggle continues the more harmful it is likely to be to the person restrained (with risks of exhaustion), therefore by applying a distraction technique C has reduced the risk to both herself and A.  Such a distraction strike would be in keeping with the Criminal Law Act 1967.  By intervening C has set a positive example to the other pupils, indicating that violence will not be tolerated and thus improving whole school discipline.  She has also prevented a nasty situation escalating to a stage where criminal charges could be brought against child A, thus acting in the best interests of the child according to Article 3(1) the United Nations Convention on the Rights of the Child

Example Two

A fifteen year old female child (E) is about to spray a can of paint on a wall just outside the school when two teachers pass by.  They ask E to stop but she continues to prepare her aerosol can.  The teachers physically intervene and hold her, escorting her back to the school,  confiscating her paint and contacting her parents. 

The teachers’ actions here not only comply with the Children Act 1989, more importantly they address the best interests of the child since they have prevented her from getting a criminal record for property damage at an early age.  If a young person is allowed by an act of omission to gain a criminal record, then the United Nations Convention on the Rights of the Child has not been observed.  We should not allow young people to ruin their lives by committing crimes if we are able to take safe and appropriate action to prevent the crime in the first instance.

Example Three

A thirteen year old boy (F) has forced open a window of a third floor building and is threatening to jump.  The boy is agitated and the threat appears genuine to the  teachers (G and H) who have come to the scene to try and talk the boy away from the window.  As the boy turns to jump teachers G and H lunge for the boy and a fierce struggle ensues as the F attempts to break free and jump.  G and H attempt to hold the boy, but this is proving ineffectual so G applies a wrist hold that applies pressure and pain to the joint.  G succeeds in restraining F. 

G and H’s use of force against a distressed child may seem extreme, but we can see that they acted in the best interests of the child and took positive steps to preserve his life.  Their use of force was therefore in line with Article 2 of the Human Rights Act 1998, Article 3(1) of the United Nations Convention on the Rights of the Child, and Section 1.83 of Volume 4 of the Protection of Children Act 1989.  Child F was in real danger of dying or sustaining a crippling injury and thus in context G’s use of pain to restrain him can be seen as both necessary and proportionate.

These examples are not flights of fancy.  Young people will be tempted to vandalise classrooms or property as a way of expressing frustration.  Children do fight in schools.  Young people do attempt to commit suicide.  Given the disparity between the age range, health and physical ability of children in the secondary sector of education and the probable age range, health and physical ability of the staff, it is clear that staff may need to employ distraction techniques to help them bring a situation under control.   The issue is not whether holding, restraint and distraction techniques should be used, and it takes very little understanding of the law and common sense to see when they should be used, the issue is more what techniques should be used.

The issue here is obviously the one of causing physical pain to the child either through restraining or through pain compliant techniques in restraint.   Is the use of pain, is striking a child, corporal punishment?  Once again we must look at the context that we envisage these acts taking place.  In each case the force is being applied to effect a positive purpose – the safety of a child or the prevention of a crime that might harm a child.  Even if teacher G had accidentally broken the wrist of child F in the struggle, the action would have been in the best interests of the child.  If teacher G had been able to apply a distraction technique such as causing pain by hitting the thigh, that teacher may have been able to secure a less painful hold (with less risk of breaking a wrist) on child F. 

There are a number of holds, restraining methods and positions and distraction techniques that are safe and easy to use.  There are a number of techniques that are effective but risk injury to the person applying the technique.  Further still there are holds, restraints and distraction techniques that are no more effective than those first mentioned but risk causing unnecessary injury to the subject.  As a result, when education staff are trained, it is important that their training is legal and risk assessed to prevent instances where children suffer avoidable injury.  It is furthermore important that staff are not only authorised to use force by their school polices, but also trained and assessed on how and when to use force on a regular basis by qualified and competent coaches.  Without training staff are likely to make inappropriate, inadequate or unsafe intervention which may lead to injury either to themselves or children.

The Case for Staff Training in the Education Sector

As can be seen from the examples above, staff need to be able to hold and restrain children on rare occasions if they are to fulfill their obligations to the child.  On rarer still occasions the strength or state of the child may be such that they need to use distraction techniques to enable them to get a safe hold or restraint in place.  It is important therefore that techniques that have been shown to be unsafe (such as striking to the face and in particular the nose) do not form part of their syllabus.  It is dangerous practice, not the use of restraint, pain compliance and distraction techniques, that needs to be the subject of a review.  To call for the removal of all painful restraint techniques because of a minority of occasions where improper use and improper knowledge has had terrible consequences is akin to calling for a removal of the requirement on motorcyclists to wear helmets since that has not always stopped them from receiving head injuries in accidents.  If, as the Joint Human Rights Committee suggest, restraint is used roughly 3000 times a year in care homes, the proportion of deaths caused by improper use (or lack of awareness for the need for clear airways or of the dangers of positional asphyxiation) must be around 0.03% - and that assumes that a child dies every year, which is not the case.  Better education and training for those involved in child care is the answer, reducing the ability of people to restrain children will only result in a massive upsurge in child injuries and criminal records.

Under Section 2(2)(c) of the Health and Safety at Work Act 1974  employers should provide information, instruction, training and supervision as is necessary (do everything physically possible, regardless of cost) to ensure the  health, safety and welfare of staff whilst at work.   Under this statute and Section  3 of  the Health and Safety Act 1974, the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child 1991, schools that do not have appropriate policies in place for physical intervention, restraint or breakaway, or provide training for staff to allow them to effect those policies competently, are at risk of prosecution should an investigation arise.  

The reason for this is simple.  Violence against teachers and similar incidents in schools  involving children (or their parents) are now so common, that in failing to provide training so that staff are able to make informed decisions and undertake competent responses, schools are now almost certain to be seen as having failed to provide duty of care to both their staff and their pupils.  In 2005-6 there were 221 attacks on teachers in England resulting in at least three days being taken off work, and 87,610 pupils were excluded from England's secondary schools for physical or verbal assaults on teachers, the equivalent of 2.7% of all pupils.[2]   In 2004 272 teachers took at least three days of work due to attacks and figures from the Health and Safety Executive indicate twice as many teachers suffered such severe injuries that they needed to be resuscitated or kept in hospital.[3]  In contrast to this there are approximately 1300 fires requiring the attendance of the fire service in schools in England and Wales each year, of which only a third occur during the school day.[4]  All staff and pupils practice fire drills every term and many staff are trained to use extinguishers as part of INSET, but how many schools rehearse their alarm policies for intruders on site, or train their staff to manage  these and other violent incidents?  Given the prevalence of the problem of violence against pupils or staff, and the potential seriousness of any incident,  there is no sound legal defence for schools not having policies and staff training in place.   Headteachers and governing bodies should be aware that in addition to the previously mentioned legislation, under the new Corporate Manslaughter and Corporate Homicide Act 2007 they can be prosecuted where there has been a failing in the management of health and safety that has resulted in fatal consequences.

Any school, union, or local education authority that is in the process of formulating policies for its staff with regard to the use of force should be aware that there is a broad legal package that needs to be assessed to ensure that they can, if necessary, justify themselves in a court of law and provide their staff with the support they deserve.   Any policy created by a school and subsequent training package needs to show a competent and accurate  understanding of the legal implications, an informed assessment of the risk involved and a knowledge of appropriate and effective methods of intervention.  This need for proper training was stressed in the companion residential care environment by the  Department of Health document Guidance on Permissible Forms of Control in Children’s Residential Care-LAC(93)12, Section 5.2 which states “The proper use of physical restraint requires skill and judgement as well as knowledge of non-harmful methods of restraint.”  There is a clear requirement for all schools to have policies in place that give staff the confidence and freedom to act, and all staff, students and parents should be made fully aware of their school’s policies.  Furthermore, to reduce the risk of injury to staff and children, all staff should receive appropriate training in physical intervention and restraint.  Due to the sheer numbers of staff in many schools this will be difficult to implement overnight and many schools will have to run regular training programmes as part of their INSET.  Schools may find that they need to be more flexible in their use of INSET with groups of staff training at different times to coincide with examination invigilation or residential trips.  As Martin Pilkington, the head of ATL legal services stated, “the provision of training is essential and should be compulsory for all relevant new and current members of staff, and should be updated and refreshed on a regular basis.”   The NHS has a very well publicized policy of Zero Tolerance for violence and verbal abuse against its staff.  It is a policy that ensures that helps ensure staff safety, staff confidence and the respect of the general public.  It is a damming indeed that no such policy is advertised or enforced in our schools.   What subliminal message on the importance of education do we send out to the next generation when education staff are not afforded the same clear protection as their peers working in the NHS?  What effect would clearly advertised Zero Tolerance policies and staff training have on the behaviour and habits of our young people both in and out of school? 

There may be teachers who find themselves in workplaces that they believe are unsafe due to the lack of support or training provided by their management.  For those who find themselves in this position Section 100 of the Employment Rights Act 1996 may be of use.  Section 100 gives employees the right not to be dismissed for any of the following:

  • Taking appropriate steps to protect either themselves or others in circumstances of serious or imminent danger.
  • Leave or propose to leave the workplace, if there is believed to be some serious or imminent danger which could not be averted, and,
  • Refusing to return whilst the danger persists.

There are many schools that might be deserted by their staff if they were aware of this legislation.  It is vital that Headteachers in this country take positive steps and provide their staff with the training they need.  Doing so is not only likely to improve discipline by giving staff more confidence, but also likely to save money by reducing staff illnesses, injuries and early retirements.  When a teacher projects confidence, when pupils know that a member of staff can act and will act (and in doing so will be supported by their school and LEA), discipline improves, negative disruptive acts decline and as a consequence teaching and students improve.  It is possible that a more positive attitude within schools may have a gradual effect on the wider community.

Training should not be exclusive to teachers and teaching assistants.  School inspectors are expected to assess every aspect of a school.  If they have not had training in the law with regard to the use of force, or the physical application of force, they cannot be qualified or competent to pass judgement on a school’s policy with regard to the same.  If a school is required by an inspector to change its policy on force, and that change results in an act of omission that in turn causes severe injury to a child, the inspector will be liable for prosecution as well as the headteacher. 

The provision of training

The requirement for training is obvious.  The problem is that very few schools and Local Education Authorities know what they should be looking for when contracting an individual or company to provide training for their staff.  The list below forms a rough guideline as to what schools and LEAs need:

  1. The training package should include training, advice and guidance on the law with respect to their profession and their likely needs.
  2. The physical training should have a force continuum which includes the use of pain compliance techniques where non harmful techniques are not appropriate, but focus on non harmful intervention.  The methods taught should be individually risk assessed and staff should be made fully aware of all the risks to themselves (and to the subject) of each technique.  The dangers of inappropriate intervention and restraint should be made clear.
  3. The training should be of appropriate duration and size limited.  You would not expect a PE Teacher to teach essential physical skills to a group in the blinking of an eye, nor would such a teacher be expected to coach effectively to a large group.  If one provider is offering a course of half the duration of another, something is missing.
  4. The training provider should have insurance appropriate to the type of training undertaken.
  5. The trainer(s) should have a recognisable teaching/coaching qualification and qualifications specific to the type of training required.  You would not employ an expert carpenter to fit a gas cooker in your kitchen, you would instead look specifically for an individual who was CORGI certified.   In the same way there are many skilled martial arts instructors whose discipline may overlap with some of the skills you require, but you should not employ a Judo, Ju Jitsu or Karate instructor (especially if they only have in-house instructor training) – you should instead look for a trainer with some form of qualification in self protection, restraint and breakaway techniques.  There is currently no nationally approved organisation, association, accreditation, provider, standard or course in this field. There are a number of very good trainers out there, and there are a number that are, often unknowingly, unsafe.  A school that employs poor trainers will also be liable for any unnecessary injury caused by the training they have provided.  When searching for a trainer, they need to show you that what they do not only works, and is safe, but that it complies with the law – factors which should in any case be part of the provided course.

The safety of the children in our schools matters.  The safety of all those who work in education matters. No-one in education should ever have their safety compromised due to lack of appropriate training, but unless the necessity for such training is stressed by the government, both teaching staff and children will continue to suffer unnecessary injuries.

 

[1] A. Ashworth, Principles of Criminal Law, (Oxford, 5th Edition 2006).

[2] P. Hutchison & G. Patton, ‘Teachers face surge in violence from pupils’, The Daily Telegraph, (04/01/2008).

[3] M. Shaw, ‘Big rise in attacks on staff’, Times Educational Supplement, (29/07/2005).

[4] Fire Safety in Schools, www.teachernet.gov.uk/management/resourcesfinanceandbuilding/schoolbuildings/stat/firesafetyforschools/ and BB100 Designing and managing against the risk of fire in schools, (July 2005). Pages 5 & 8.

 

Marcus_1
Marcus_1's picture

That is a fantastic piece of writing JWT and, as you say certainly not too far fetched in the examples given.  Thanks for sharing, now if only the powers that be did not have some far flung idea that the use of joint locks on juveniles is something to be avoided as it "impedes the natural development of bone structure in those aged under 18".

JWT
JWT's picture

Marcus_1 wrote:

That is a fantastic piece of writing JWT and, as you say certainly not too far fetched in the examples given.  Thanks for sharing, now if only the powers that be did not have some far flung idea that the use of joint locks on juveniles is something to be avoided as it "impedes the natural development of bone structure in those aged under 18".

Thanks Marcus_1.

As with many pronouncements the sort of idea that is put forward as 'fact' most likely has no basis in any scientific study with an adequate sample pool. Overall the actual number of juveniles who are restrained per annum is probably very small as a percentage of the age group in the country. Naturally there are extenuating factors as in good practise in environments where the staff are appropriately trained physical intervention, holding and restraint will only be used when necessary to prevent (more severe) injury to the restrained individuals or to those (including staff) around them. That by necessity dictates that the restrained individuals are likely to be resisting restraint and therefore may sustain managed (ie calculated as necessary and lower than the non restraint option) injury. Fortunately if anyone was funded or interested we do have a huge data pool from which to assess whether regular joint locks impede the development of bone structure in those under the age of 16. Martial arts are an incredibly popular activity for young children, and across the country for decades  thousands of children have participated in arts such as Judo and Ju Jitsu where joint locks and immobilisation techniques are the norm. In countries like America juvenile wrestling is widespread in schools and an accepted sporting discipline. I am not aware of any evidence that indicates that in the short term joint locks (oe activities such as wrestling) cause more injuries per capita than other activities such as rugby or (ice) hockey, football or cricket. If it caused long term damage then we would already have widespread evidence across the generations from adults that participated in such activities. When such straw men are raised it is perhaps best to dismiss them with more compelling 'anecdotal evidence'.

Marcus_1
Marcus_1's picture

JWT, my previous employment was in a juvenile unit (in UK), since I have left that job, they have changed the restraint techniques to pretty much eradicate joint locks due to the apparent issue with growth impedement.  Having said that, yes, the amounto of restraints per capita of young is not massive (it is a relatively small proportion of the popullation of teenage males that are locked up in the UK).

Iain Abernethy
Iain Abernethy's picture

JWT wrote:
A number of years ago, before the then government provided clearer guidance on how teachers could use force, I sent the following article to the Secretary of State for Education and his Shadow counterparts.

Great piece that John! Thanks for sharing it here.

JWT wrote:
An employer can suspend or sack an employee they feel acted inappropriately (and in the case of teachers even cause them to be placed on the PoCA list) even if the Police feel there is no case to answer.

I have a relative who works in the field of employment law (guidance to employers for procedures, providing training, representing people at industrial tribunals, etc.).

I asked him what his thoughts and experience would be on this topic so we have the indirect input of a qualified legal professional.

As per John’s quote above, he confirmed that an employer could sack an employee for something which the police had investigated and found there was no case to answer. The example given was theft. The employer believes the employee is stealing and hence sacks them and calls the police. The police investigate and decide there is not enough evidence to persecute. The employer is not bound to follow the findings of the police and can still sack for theft. If the case went to Industrial Tribunal, then the employer and employee would put forth their cases there. However, things would be a bit different when it comes to self-defence.

If the legal system did conclude that the employee had acted within the law when protecting themselves that, by definition, means the force used was necessary and reasonable. It is therefore a positive finding of something that did happen, as opposed to an inconclusive finding about what may have happened. While the employer can still sack the employee (they are not legally bound to abide by the police findings), the employee is in a far stronger position to claim the dismissal was unfair because the legal system have confirmed their version of events; as opposed to not having conclusively proved the employer’s version of events (the theft example).

Firstly, no good employer would seek to sack a person when they got assaulted on the job. Secondly, even the not so good would no doubt be advised of the strength of the employee’s case and advised against perusing that path.

I worry this thread is unduly focusing on the worst case scenario i.e. you legitimately protect yourself from unprovoked assault in accordance with the law, but your employers seeks to sack you regardless. That is, of course, not the most likely scenario. It is far more likely your employer would be fully behind you. And even if they weren’t, it is far more likely that they will get legal advice to tell them they have to support you anyway. If people fear prosecution or sacking then it produces unnecessary worry and hesitance in the face of very real danger.

Some statistics around self-defence in the workplace and resultant prosecutions and sackings would be helpful. Does anyone even know of cases where the police have decided lawful self-defence, but the employer nevertheless sacked and was supported by industrial tribunal when challenged? If not, we need to ensure we are not inadvertently scaremongering through focusing on what amounts to a largely theoretical issue.

All the best,

Iain

JWT
JWT's picture

Iain Abernethy wrote:

I worry this thread is unduly focusing on the worst case scenario i.e. you legitimately protect yourself from unprovoked assault in accordance with the law, but your employers seeks to sack you regardless. That is, of course, not the most likely scenario. It is far more likely your employer would be fully behind you. And even if they weren’t, it is far more likely that they will get legal advice to tell them they have to support you anyway. If people fear prosecution or sacking then it produces unnecessary worry and hesitance in the face of very real danger.

Good point Iain. I only know of two instances, both of which are discussed by Mark Dawes in his excellent Understanding Unreasonable Force - The use of force with Children and Young People. Lillie and another v Newcastle City Council and others (2002) EWHC 1600. Two nurses found guilty of systematic abuse by a local authority enquiry who sued for libel, they won their case. A successful appeal against inclusion on the POCA list Darren Mark Quallo v Secretary of State for Education and Skills (2003) 213.PC. 

The problem that can occur in some enviornments is that the Police may not be involved and the investigation may be internal. In such cases it is very important that both the employer and employee have good legal counsel and training. It is important to stress that we have a very supportive legal system for people who act appropriately.  

Professor of Law Gary Slapper noted that the CPS had found in 2005, when they looked at prosecutions over the preceding 15 years, there had been over 20 million crimes that they had looked into with regard to the use of force, but during that time there had only been 11 cases where people had been prosecuted for excessive use of force in self defence.

JWT
JWT's picture

Marcus_1 wrote:

JWT, my previous employment was in a juvenile unit (in UK), since I have left that job, they have changed the restraint techniques to pretty much eradicate joint locks due to the apparent issue with growth impedement.  Having said that, yes, the amounto of restraints per capita of young is not massive (it is a relatively small proportion of the popullation of teenage males that are locked up in the UK).

Thanks for sharing.

Steve Gombosi
Steve Gombosi's picture

If the legal system did conclude that the employee had acted within the law when protecting themselves that, by definition, means the force used was necessary and reasonable. It is therefore a positive finding of something that did happen, as opposed to an inconclusive finding about what may have happened. While the employer can still sack the employee (they are not legally bound to abide by the police findings), the employee is in a far stronger position to claim the dismissal was unfair because the legal system have confirmed their version of events;

 

In the UK. As previously noted, the situation is very different in the United States. Employment law in the US varies from state to state - most states are "at will" states (in fact, I think every state except Montana is). In an "at will" state employees who are not covered by a written employment contract (which would be the vast majority of employees) can be terminated at any time, with no notice, for any reason that doesn't violate state or Federal antidiscrimination laws (or indeed for no reason at all). Some employers (even major ones) have indeed fired employees for defending themselves against violence in the workplace.

For example:

http://www.sltrib.com/sltrib/news/58369646-78/mart-wal-employees-fired.h...

http://apps.americanbar.org/ababoards/blog/blogpost.cfm?threadid=30907&c... (the use of a firearm in this case may make some readers less sympathetic - but the dismissal wasn't based on the firearm, but on the act of self-defense itself)

http://www.hrmorning.com/worker-punches-belligerent-shoplifter-should-he...

And a somewhat related case:

https://scholar.google.com/scholar_case?case=15729699166371186069  (not self-defense, but defense of others)

And at least one case where an employee was dismissed for being the <i>victim</i> of a surprise attack:

https://scholar.google.com/scholar_case?case=17372148032543337389

I certainly agree with Iain's contention that "no good employer" would fire an employee who acted legally to protect himself/herself from attack. Unfortunately, there seem to be a lot of "no good" employers out there.

Steve

Tau
Tau's picture

Resurecting a thread, but for a reason, of course.

Firstly, the outcome was two suspended prison sentences plus orders to pay compensation. I'm not wholly comfortable with receiving my compensation so will gladly donate it to an appropriate charity, such as one involved with domestic violence. I don't want to go into the reasons for this for professional reasons on a public forum.

But also, this on Facebook (for the benefit of those on here who aren't Facebook friends

"Today I have mandatory training for NHS Professionals on conflict resolution and breakaway.

...

Bullshit bullshit bullshit.

That was mostly a pretty good session, certain well presented and engaging.

Until she dropped the bombshell. Any boxers, Karate practitioners, Taekwondo people etc must register their hands and feet with the Police as weapons!!!!!!!!

What year are we in that people still believe this bullshit?

Oh and the breakaway was absolutely dire. Unworkable, failing to consider context, failing to consider the reality of attacks, inconsistent, no concept of biomechanics.

Bullshit!"

Steve Gombosi
Steve Gombosi's picture

Sometimes sanity prevails, even in the American legal system. In the WalMart case mentioned above, the Utah State Supreme Court has ruled in favor of the employees - creating a self-defense exception to Utah's at-will employment rules:

http://www.scribd.com/doc/281842568/Ray-Et-Al-v-Wal-Mart

karate10
karate10's picture

As a night Secuirity Officer, I actually never use my Karate yet, but by all means, anything can happen at any giving time as we all know. Thank goodness, since I'm the only worker at my job site, I practice my katas that first comes to mind and tune in to YouTube to give me good ideas to expand with my private trainning in my office when I'm not practicing at my dojo.