Employee Accident Claims and Employment Law
Posted: Thursday 25 February 2010
Introduction
As an employer, what happens if an employee has an accident at work? This article looks at the legal issues surrounding employees’ health and safety generally and how employers can avoid some of the more common pitfalls associated with work-related accidents.
Many employers view accident claims by employees as an HR issue. However, this attitude can be short-sighted. Workplace morale can be lowered by ongoing claims and litigation can absorb large amounts of management time. Accidents can also be expensive because of time lost due to absence, the cost of providing temporary or replacement cover along with the ongoing cost of compulsory employers’ liability insurance.
It is important to have good policies and procedures in place, both to prevent accidents and to deal effectively with employees post any accident.
Health and Safety at Work Act 1974
The basic provisions regarding health and safety in the workplace are contained in the Health & Safety at Work Act 1974 (“1974 Act”). The 1974 Act forms the basis of a whole range of statutory regulations. The Act applies across industry and commerce, creating duties upon employers to protect against, for example, slips, trips, manual handling injuries, falls from height and working with moving parts of equipment and machinery.
The 1974 Act is both general and specific: it covers workplaces generally but also makes specific reference to particular work sectors.
It is worth being aware of two sections of the 1974 Act. Section 2 states that employers have a duty to “take such steps as are reasonably practicable to ensure the health, safety and welfare of employees”. What is “reasonably practicable” will, of course, depend on individual circumstances.
Section 7 of the 1974 Act lays the duty on an employee to “take reasonable care for their own safety and others and others who may be affected by his acts or omissions”. So in a situation where an employee has taken an unnecessary risk and had an accident as a result, the employee may have breached this section of the Act.
Quite properly, much effort by employers and enforcement authorities is directed towards trying to avoid accidents in breach of the 1974 Act, for example by preparing risk assessments, carrying out proper maintenance of equipment and effective safety training.
Perhaps surprisingly, considerably less effort is directed towards the employee’s duty to take reasonable care for his own and other employees’ safety when carrying out his job.
Use of Disciplinary Procedures and Policies
It is still the case that most employers’ policies or procedures either say nothing about the employees’ duty of care or simply pay lip service to it. Even if such rules do exist, it is rare for employers to invoke their disciplinary procedures when there may have been a failure. It is recommended that employers introduce and implement effective policies to improve workplace safety.
Benefits
1. Such a process is likely to entail carrying out investigations into any accident, including looking at the locus and obtaining statements or detailed accounts from witnesses (including the person or persons injured). This can prove valuable should any subsequent personal injury claim be intimated. Good investigations preserve evidence while it is fresh and allows matters to be properly handled by the employer, the health and safety manager and the insurers.
2. It is ultimately for the court to determine either civil or criminal liability in a damages action or prosecution, although in practice a careful investigation by the employer which results in a finding of fault on the part of the employee after disciplinary action may well influence the court’s approach. This would be so, particularly where the employee had either accepted that he was wholly or partially to blame for his own misfortune or where any disciplinary penalty was not appealed. By the same token, if a third party employee was disciplined for injuring a fellow worker then this would be likely to weigh in favour of any subsequent damages claim against the employer. This would be based upon the employer being vicariously liable for the fault of its employee (ie the employer being responsible for the actions of the third party employee).
3. If employees are held accountable for carelessness at work then they are likely to be more attentive with all of the resultant benefits to the employer noted above.
Disability Discrimination Act 1995
It is sensible to take disability legislation into account when considering work-related accidents. The Disability Discrimination Act 1995 (“DDA”) currently encompasses rights of employees with disabilities.
Employees will frequently be disabled within the meaning of the DDA following an injury at work.
The DDA essentially outlaws direct discrimination on the basis of disability, outlaws discrimination for a reason related to disability and creates a duty upon employers to consider making “reasonable adjustments”. Reasonable adjustments can include adjustment of a working environment or any system of work to accommodate any disability or restrictions an employee may have.
Not only will employers who have failed to properly deal with any matter relating to disability be exposed to a civil damages claims but they may also be sued if acting in breach of the DDA.
Such claims may arise where an employee who is off work with injuries from an accident is unable to return to his old job and has his employment terminated by the employer without consideration of the duties under the DDA. A duty may arise even where employees have been off work for a prolonged period. A not untypical situation is where the employer does not particularly want the employee to return but wishes to dismiss and replace the employee. It is worth noting that in such circumstances the claim under the DDA would not usually be covered by any employers’ liability insurance.
Lack of Capability
If an employer does dismiss an employee in these circumstances, it is important for the employer to understand the employee’s rights.
Under the Employment Rights Act 1996 (“ERA”) an employee with more than one year’s service has protection against unfair dismissal. One of the potentially “fair reasons” for dismissal relates to lack of capability (including medical incapability) on the part of the employee.
Even though an employee may be off sick on a long term basis following an accident at work, the employer must comply with the provisions of the ERA and show that it acted reasonably.
In this situation, the employer acts “reasonably” if it had a sufficient reason which justified dismissal in the circumstances and can show that a fair procedure was followed. Again, the legal expense involved in defending an unfair dismissal claim (including any award made) will not be covered by a standard employer’s liability policy, although the employer may of course have other insurance arrangements in place.
For more information, please contact Jim Herd of our litigation team.
