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Your entitlements after an incident
All employees have certain rights and entitlements after an incident of assault or abuse.
As an employee, you have the right to:
complain about circumstances connected with your work which you reasonably believe to be harmful or potentially harmful to your health and safety
leave, propose to leave or - while the danger persists - refuse to return to your place of work in circumstances of danger which you reasonably believe to be serious and imminent, and which you cannot reasonably be expected to avert
take appropriate steps to protect yourself or others from danger which you reasonably believe to be serious and imminent.
Your employer should not subject you to any detriment (such as a written warning) for taking such action. If you are dismissed for exercising these rights, your dismissal may be automatically unfair.
If you have concerns relating to health and safety or are in any doubt about your position - and your employer's reaction to any of the above - you should contact ATL for advice, either locally through your branch secretary or directly via ATL's London office.
Constructive dismissal
There is an implied term in your contract of employment that places an obligation on your employer to provide you with a healthy and safe working environment. Breaches of this obligation might include a failure to:
take adequate or indeed any protective security measures
take adequate steps to remedy a danger
investigate a health and safety complaint
investigate such a complaint promptly and sensibly
treat an employee properly following a violent incident.
When employers break their fundamental obligations under the contract of employment, an employee can resign either immediately or by giving notice. The employee should state clearly and in writing that their employer's conduct has been so unreasonable that they are entitled to leave.
The employer has not given notice to the employee so they are not formally dismissed. However, the employee can argue that the actions of the employer are such that it became impossible to remain in post. In other words they have been "constructively" dismissed.
If the employee delays the resignation, they are seen to have accepted the employer's conduct and to have waived the breach of contract. A claim to the employment tribunal must be lodged within three months of the date of dismissal.
In order to claim constructive dismissal you have to resign and leave your employment. This is an extremely serious step to take and you must seek ATL's advice before walking away from your job. In many cases it is very important for the employee to follow the requirements of the statutory grievance procedures (due to be abolished in April 2009) before making a decision to resign from the job. Again, you should take advice from ATL on the required steps.
If you are to succeed with a claim for constructive dismissal then you will have to show that your employer's conduct was so intolerable that it amounts to a repudiation of contract.
Sick pay
Your entitlement to sick pay should be set out in your contract of employment or statement of terms and conditions. Teachers in maintained schools who are absent from work as a result of an assault suffered at school in the course of their employment are entitled to full sick pay from the day of the assault up to the date of recovery, for a period not exceeding six months (Burgundy Book regulations).
Support staff benefit from similar provisions in the National Joint Council for Local Government Services' National Agreement on Pay and Conditions of Service (Green Book). You should contact your employer for details of the scheme that applies to you.
Teachers in independent schools may have sick pay entitlements that equate to the provisions set out in the Burgundy Book. However, you should check your contract or statement of employment particulars for your entitlement.
State benefits
If you are disabled as a result of an industrial accident you may be entitled to claim industrial injuries disablement benefit (IIDB). This is a non-contributory, non-means tested and non-taxable benefit.
Your disablement must have lasted for two months from the date of the accident for you to be able to claim. Your local DWP office (find it online at www.jobcentreplus.gov.uk) can provide you with a claim form. You may be asked about your background and be required to submit any official documents that you have in support of your claim.
Employers' insurance
Teachers in maintained schools have the benefit of their employers' insurance under section 8 and appendix V of the Burgundy Book. Substantial compensation is payable, but only in the event of death or permanent total or partial disablement arising from an assault.
Provided that their contract incorporates the Green Book, support staff in maintained schools have similar benefits in part 3, section 7. Payments are made in the event of death or permanent disablement arising from a violent or criminal assault suffered in the course, or as a consequence, of their employment.
Staff in independent schools may have equivalent benefits incorporated in their contracts or statements.
ATL insurance
ATL members receive insurance cover and protection that includes the following:
Personal accident cover: all members are automatically insured for £5,000 against death, permanent total disablement, and loss of limbs, eyesight or digits.
Loss or damage to property: personal belongings (including personal effects and jewellery) are insured for standard and individual affiliate members while inside school buildings up to a maximum of £100. This includes pupils' property that is being held by teachers. Claims for less than £10 are excluded. Spectacles are covered inside school buildings and on school premises, such as car parks, playgrounds or playing fields. There is a limit of £50 on cash.
Assault: ATL provides an automatic benefit to standard and individual affiliate members absent from work for more than seven consecutive days because of an assault. The payment is £50 per week for up to four weeks' incapacity. (This cover is only available if the incident occurs whilst on school premises.)
Dental treatment: NHS dental treatment is covered up to a limit of £150 as a result of an assault or accident occurring during teaching activities. (This cover is only available if the incident occurs whilst on school premises.)
The above amounts may change and any claims are subject to terms and conditions. To find out more about making an insurance claim please telephone: 020 7930 6441 or email ATL.
Compensation
The Criminal Injuries Compensation Authority (CICA) makes financial awards to compensate individuals, including for physical and mental injuries caused by violent crime.
There are three possible types of CICA award:
a tariff award, based on the type of injury you have suffered
compensation for loss of earnings
special expenses compensation.
The maximum total payment for all three types of compensation added together is £500,000. Compensation for loss of earnings, if awarded, will not be paid for the first 28 weeks of loss. Some special expenses are also payable, for example the cost of care provided at a residential establishment or at home and any changes to your home required as a result of your injury.
Making an application to CICA
Your application will be considered only if it is received on the prescribed CICA form within two years of the incident causing injury. Your application will be considered if you:
have been physically or mentally injured (or both) as a direct result of a violent crime, or some other incident covered by the scheme
were in Great Britain when you were injured
have been injured seriously enough to qualify for at least the minimum award (currently £1,000) under the scheme.
Your application will not be considered if:
you suffered your injury before 1 August 1964
you have already made a claim for compensation for the same injury under the 2001 (or an earlier) scheme
the injury took place before 1 October 1979 and you were living with a person who injured you as a member of the same family.
There are circumstances in which an award may be withheld or reduced, for example:
if you fail to cooperate with the police in bringing the offender to justice (see below)
if you fail to cooperate with CICA in relation to your application
if your action caused or significantly contributed to the incident when the injury took place.
CICA has a general rule that any incident around which a claim is being made should be reported to the police. Failure to report the matter and cooperate with the police may result in your application being rejected.
If you are considering making a CICA claim, contact Morrish and Co, ATL's appointed solicitors, on tel: 0800 083 7285 or online at www.atlinjuryclaims.org.uk.
Need further advice?
Your first point of contact is your ATL rep in your school or college. Your local ATL branch is also available to help with queries, or you can contact ATL's member advisors on tel: 020 7930 6441 or email us. Please have your membership number to hand when telephoning and include it with any correspondence - this will help us to answer your query more quickly.
You may also wish to call: the out-of-office-hours helpline, tel: 020 7782 1612; our stress helpline, tel: 08705 234 828; our crisis helpline, tel: 08705 234 838, or our personal injury claims line, tel: 0800 083 7285.