- 16 minute read
- Last updated: 30th November 2019
By law, employees should not be dismissed after an accident at work that left them injured. If, however, you have been injured at work, you may be concerned about your rights to take time off and if there are any implications of making a personal injury claim.
This article covers:
- Employee rights after an accident at work
- Dismissal after an accident at work: can you claim unfair dismissal?
- Returning to work
- Can I make a personal injury claim?
- What to do after an accident at work
After an accident at work you will have the right to either statutory or contractual sick pay where you are absent for a period of more than 4 consecutive days as a result of any accident-related injuries.
Many employers will make provision for sick pay by way of an occupational scheme over and above the statutory minimum. However, there is no absolute entitlement to contractual sick pay, as this will be in your employer’s discretion.
In the absence of a written contract, or where your employment contract is silent as to any entitlement to sick pay, you may instead be eligible to claim statutory sick pay (SSP), payable by your employer at a rate of £94.25 for a period of up to 28 weeks.
You will be eligible for SSP if you earn on average at least £118 per week. In the event that you are not entitled to sick pay, you might be able to claim Universal Credit or another type of benefit instead.
In circumstances where you are eligible for SSP, your employer cannot refuse to pay you simply because your inability to do your job has arisen out of an accident at work, even where the accident was your fault.
Further, if your employer seeks to dismiss you in consequence of any injuries arising out of an accident at work, or directly as a result of having had an accident at work, this could be classed as unfair.
The law provides a list of reasons for which an employee can be fairly dismissed, such as misconduct on your part or you not having the necessary capability to do the job in question, but being involved in an accident at work is not one of them.
As such, you may be eligible to bring a claim for unfair dismissal in the event that your employer dismisses you because you have had a workplace accident.
That said, you must have worked continuously for your employer for a period of not less than 2 years, save except in limited circumstances where the minimum length of service requirement does not apply.
By way of example, a dismissal will be classed as automatically unfair, thereby negating any need for 2 years’ service, where you report your employer for some wrongdoing in the workplace, ie; whistleblowing. This could be relating to a serious health and safety issue arising out of the accident.
A dismissal will also be classed as automatically unfair where you are dismissed as a result of bringing to your employer’s attention circumstances connected with your work that you reasonably believed were harmful.
However, in the event that an accident at work was caused in consequence of your own misconduct, for example, where your actions or inaction seriously comprised the health and safety of both yourself and others around you, your employer would be entirely justified in dismissing you.
Moreover, where the matter was sufficiently serious to constitute gross misconduct, your employer would be entitled to summarily dismiss you, ie; without notice or going through the normal disciplinary procedures.
Further, where you have a persistent or long-term condition arising out of the accident that now makes it impossible for you to do your job, your employer may again be able to fairly dismiss you.
That said, if you now have a disability in consequence of injuries sustained in the accident, either physical or psychological, your employer has a legal duty to support you within the workplace. You will be classed as having a disability if you have a physical or mental impairment that has a substantial and long-term negative effect on your ability to do normal daily activities.
Dismissal because of a disability can amount to unlawful discrimination for which you can take legal action in the employment tribunal. As such, your employer should look for ways to support you within the workplace, including giving you reasonable time to recover from your illness.
It is not uncommon for an injury arising out of an accident at work to leave an employee with difficulties in doing their job. If an injury means that you are no longer able to carry out your normal day-to-day activities in the long-term, your employer must not discriminate against you because of this.
In particular your employer should only look at dismissing you as a last resort, first exploring how they can assist you with your return to work, or in continuing to work, by making reasonable adjustments within the workplace.
This could be through physical adaptations, like installing a ramp or the use of special equipment such as an ergonomic chair. It could also include allowing you to make a phased return to work, or undertaking amended duties and altered hours, such as part-time or flexi-work.
Ideally, your employer should undertake an occupational health assessment to determine whether you are ready to return to work and in what capacity. Regard should also be had to any recommendations made by your GP on your sick note. This is now described as a “statement of fitness for work”, or FIT note, and will specifically allow your GP to comment on what reasonable adjustments within the workplace would benefit you.
In the event that you are ultimately dismissed on grounds that your disability, arising out of work-related injuries, has rendered you incapable of doing your job, the onus will be on your employer to prove why they were unable to make any reasonable adjustments.
If you are involved in an accident at work and suffer injury in consequence, in circumstances where the accident was caused as a result of any act or omission on the part of your employer, you may have the basis for a claim in negligence and/or for breach of any statutory duty relating to safety in the workplace.
In particular, an employer is under a duty of care to take all reasonable steps to ensure that you are safe and free from harm whilst at work, including the provision of safe work equipment and protective work wear, as well as suitable training.
Any damages awarded in a personal injury claim are designed to compensate you for the pain and suffering you have endured, as well as any financial losses you have sustained as a result, for example, loss of earnings and any medical treatment costs.
Personal injury claims, however, can be complicated and will typically require the expert assistance and representation of a specialist lawyer. At the very least you will need to commission evidence from a medical expert as to the extent and cause of any injury. You may also need expert evidence as to how the accident happened and how your employer was negligent and/or in breach of their duty of care to you.
In the same way that your employer cannot unfairly dismiss you because of an accident at work, you cannot be dismissed for making a claim for personal injury arising out of that accident, or for intimating that you intend to do so.
Similarly if the relationship between you and your employer begins to breakdown in consequence of you bringing a personal injury claim, such that your working life becomes unbearable, you may have a claim for constructive dismissal in the event that you feel forced to resign.
In most cases, any reputable employer will recognise that your claim for personal injury is not in fact personal against them, whereby the matter is usually dealt with and conducted on behalf of the employer by their liability insurers. As such, it is not uncommon for the matter to be settled via the insurers without any need for contested court proceedings.
In the event that you have had an accident at work you should report this as soon as possible to your employer. The best person to tell is probably your manager, although you may want to check your staff handbook or intranet for further guidance on who to report to.
Having reported the matter, you should also ensure that the matter is properly recorded in an accident book, or otherwise documented in writing in some other official format. If your employer has more than 10 employees, they must record it in an accident book. Where an accident book is not available, you should ask for the matter to be recorded in writing in any event.
Where a manager or other person records this information on your behalf, you may want to check the accuracy of their written account to make sure that this accords with what you say took place and that you are happy with the contents of any such report. It is not uncommon for important detail to be misconstrued or lost in translation when relayed to someone else.
By creating and/or checking any accident report you can feel confident that you have a contemporaneous and accurate account of what has happened, not least if you need to subsequently refer back to this in the event of legal proceedings. This may be because you have a claim for unfair dismissal, namely, where you believe you have lost your job because of the accident, as well as a claim for personal injury.
You should also make notes about your accident for your own records, again in the event that you may need to refer back to these, perhaps in the context of creating a witness statement for the purpose of legal proceedings. This should include drawings where these are likely to help illustrate and explain how the accident happened.
In addition to any accident report and illustrations, you should take photographs of where the accident took place, including photographic evidence, where at all possible, of what is said to have caused the accident.
The accident location may be in your usual workplace or it could be a different location, possibly premises belonging to another business or client, or otherwise somewhere outside of work premises, albeit in relation to an accident that happened during working hours. You should also take photographs of any injuries sustained, both immediately following the accident and documenting your recovery.
Where the accident was witnessed by a third party, whether this be a work colleague, a member of the public or anyone else, you should endeavour to identify all such witnesses and obtain their contact details for future reference. You may also want to ask these witnesses to provide you with a written account of what they saw.
Finally, where you have sustained injury in consequence of an accident at work, save except where your injuries have resulted in hospitalisation, you should make a GP’s appointment as soon as possible.
Your GP can record the details of your accident in your medical records, as well as treat your injury. Even where you were hospitalised following an accident at work, it may be prudent, both from a legal and healthcare point of view, to seek a follow-up consultation with your GP to document the progress of your recovery.
You may also need a FIT note to give to your employer where you are absent from work as a result of your injuries for more than 4 days.
Please note, your contract of employment may allow you to take time off to visit your GP, although your employer is not legally obligated to make provision for this. Where your contract does not allow for time off from work for medical appointments, you may be able to take paid annual leave instead.
DavidsonMorris are experienced employment law specialists. Our lawyers are on hand to provide advice and guidance to employees concerned about their rights at work following an accident at work. If you have a question, contact us.