Nicola Coote CFIOSH MEWI, a leading expert witness with 20 years’ experience and 38 years in occupational health and safety practice, explains the evidence lawyers should seek when advising clients on the defence of civil or criminal allegations concerning an employer’s duty of care to employees in the health and social care sector.
The central question: what can the employer prove?
When advising clients who are defending civil or criminal proceedings arising from injury to employees, the central question is rarely whether an incident occurred. It is whether the employer can demonstrate, through contemporaneous and relevant evidence, that it took reasonably practicable steps to prevent or minimise foreseeable harm. In health and social care, that question can be obscured by the volume of care-related documentation produced after an incident, much of which says little about worker safety.
Care compliance is not the same as worker protection
The health and social care sector understandably places significant emphasis on regulatory compliance, including requirements associated with the Care Quality Commission in England or the Care Inspectorate in Scotland, and on the quality, dignity and safety of care provided to the person receiving services. Those obligations are important. However, they do not displace the separate duty to protect employees and other workers. HSE guidance recognises that people working in care settings have the right to a healthy and safe workplace, and that violence, aggression or challenging behaviour are typical hazards requiring assessment and proportionate control.
Why violence and aggression evidence is often missing
In practice, evidence of worker protection is often invisible. Records may focus on the service user’s needs, presentation, therapy plan, behaviour support plan or care outcomes, while saying little about the foreseeable risks to staff asked to deliver that care. This is particularly significant in incidents involving violence and aggression. Psychological therapies, behavioural interventions or multi-disciplinary support for the person being cared for can take weeks or months to show improvement, if they do so at all. During that period, lawyers should ask: what was done to protect workers while those interventions were being tried?
Volume is not value: documents that do not prove prevention
For expert evidence on whether the employer’s duty of care was met, documents such as sick notes, wage loss schedules, payroll records and correspondence about absence may assist quantum or employment issues, but they do not usually demonstrate prevention of harm. They do not show whether the employer identified hazards, assessed risks, implemented controls, trained staff, reviewed arrangements, or learned from previous incidents. A large bundle is not the same as a persuasive evidential trail.
The documents that carry evidential weight
The documents with substance are those that show what the employer knew, what it ought reasonably to have known, and what it did in response. Lawyers should request workplace environmental risk assessments, including site layout, access and egress, staffing levels, alarms, communication systems, lone working arrangements and visibility. They should also seek task-specific assessments that expressly include the carer or worker, not only the needs of the person receiving care. Where personal protective equipment, monitoring devices, safe rooms, alarm systems or other controls are relied upon, there should be evidence of provision, suitability, maintenance, instruction and use.
Training evidence: beyond attendance certificates
Training records require particular scrutiny. A certificate alone is not usually enough to evidence competence as a result of the training. Lawyers should establish what training was delivered, by whom, when, whether it was appropriate to the risk, whether competence was assessed, and whether refresher training was provided. De-escalation, breakaway techniques, violence and aggression awareness, incident reporting, dynamic risk assessment and escalation procedures may all be relevant, depending on the role and setting.
Incident history and foreseeability
Incident history is equally important. Previous incidents, near misses, safeguarding concerns, staff complaints, supervision notes and management reviews can demonstrate foreseeability. The issue is not simply whether an earlier incident was identical, but whether a pattern of aggression, intimidation, threats, unpredictable behaviour or escalating risk should have prompted further controls. Evidence that incidents were reported, investigated, trended and acted upon is often critical.
A recurring evidential gap in civil claims
A consistent pattern from my experience is that little or no documentation is provided to demonstrate workplace health and safety for workers. This was the case in two recent civil cases in which I was appointed as Expert. Both involved large six-figure sums being claimed. Based on the information provided, there was little or no evidence to demonstrate that the employer had met its duty of care or had taken appropriate actions to prevent or minimise injury.
Conclusion: build the defence around worker-safety evidence
For lawyers, the practical lesson is clear: ask early for evidence that goes beyond care compliance and claimant loss. The strongest defence is built on contemporaneous records showing risk identification, worker-focused assessment, proportionate controls, training, consultation, review and learning. Without that evidence, an employer may struggle to show that it did what was reasonably practicable, however extensive the surrounding care documentation may be.
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