Jobsworth by Michael Scutt

Employer Liable for Employee’s Injuries Sustained During Sex Session

Michael Scutt — Sat, 21 Apr 2012 17:13:39 +0000

Employers in the UK might think are vulnerable to any manner of speculative or vexatious claims from employees, however they should be grateful they aren’t in Australia, where a recent case will have the Institute of Directors and Tory MPs spluttering into their copies of the Daily Telegraph.

Roll on Friday, the purveyor of legal news and salacious gossip, carried this story (which also featured in the Australian Telegraph) about an HR executive required to travel for a meeting and to stay overnight in a motel. During this overnight stay she had sex with a male acquaintance (not a work colleague), which led to her sustaining facial injuries and psychiatric injury from a falling light fitting.

She sued her employer on the basis that the injuries had been sustained “during the course of her employment”. RoF reports the rationale for this thus;

“Justice Nicholas stated that she didn’t have to show that her employer had encouraged or induced her to have sex, “If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation“. And as sex is a lawful activity, she should be compensated for her injuries.”

I’m wondering if the court was asked to consider whether any degree of contributory negligence applied to her for not checking that the chandelier was safe before she started swinging from it.

Thanks to @taruntawakley whose tweet brought it to my attention.

Woman injured having sex on work trip was conducting activities in course of employment and compensated http://t.co/pgTDVh2b #ukemplaw #hr

20/04/2012 5:11 pm via webReply RetweetFavorite

@TarunTawakley

Tarun Tawakley

One million suffering from brain injuries in the UK every year

Employer Liable for Employee’s Injuries Sustained During Sex Session originally appeared on Jobsworth by Michael Scutt on 21/04/2012.

Compensation for Workplace Accidents

Michael Scutt — Thu, 19 Apr 2012 13:15:35 +0000

Personal injury solicitor – fighting for your rights

Michael Scutt — Wed, 14 Mar 2012 22:56:10 +0000

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A personal injury can result in a many different financial challenges and can add stress and worries when what you really need is to spend some time relaxing to recover from your injury. It can also be very hard to relax, especially the accident was someone else’s fault in the first place. However, the good news is that personal injury lawyers are there to help, with committed and talented legal firms who can sort out compensation for your personal injury.

Personal injury lawyers can help you to fight your case for financial compensation because the law recognises that personal injuries caused by the negligence of others should be compensated. If you have slipped on a wet floor in a shopping centre, been hurt in a road accident or whilst visiting the premises of a business, you could be entitled to compensation to cover additional expenses like medical bills or lost earnings.

Go to the claim specialists

In order to tell if you have grounds to pursue a case after an accident you should contact a personal injury specialists. A personal injury solicitor will understand the trauma and stress an accident might cause and will process your claim in a supportive and efficient way. They can also call on a network of experts in order to fight for your justice whilst at the same time ensuring that your case is treated well on its individual merit.

Contact a leading law firm and get the compensation you need and deserve. Their respected and skilled team of personal injury solicitors will support and guide you on every step of the way.

Personal injury solicitor – fighting for your rights originally appeared on Jobsworth by Michael Scutt on 14/03/2012.

When Can You Claim For Personal Injury?

Michael Scutt — Mon, 27 Feb 2012 14:02:42 +0000

Accidents at Work and on the Roads

Michael Scutt — Thu, 22 Dec 2011 05:01:25 +0000

Sponsored Blog Post

Family lawyers often talk about how Christmas gives rise to an upsurge in divorce work in the New Year. The same is probably also true of personal injury work, if to a lesser extent. Claims for personal injury usually involve

an accident at work,
Road Traffic Accident
a slip or trip on a pavement
injury by a faulty product.

The numbers of road traffic accidents increases in the winter with poor light and icy conditions.

If you have been injured in an accident you may want to take legal advice from solicitors that undertake work on a no win no fee basis. Before you can claim compensation you have to prove that the person responsible for the accident was negligent and that can be very difficult.

Accidents at Work & Occupational Illness

There has been much discussion over the last few weeks about the proposed changes to employment law. What has been less talked about is another part of the Coalition government’s “bonfire of red tape” and budgetary cuts, being the reduction in the Health and Safety Executive’s budget, which will lead to fewer automatic inspections by the HSE of workplaces.

The HSE published its own Annual Statistics Report for 2010/11 recently and it contained some sobering facts. In that period 171 workers were killed at work and 115,379 employees suffered injuries that were reportable under the Government’s RIDDOR scheme. In addition a further 200,000 employees suffered workplace injuries requiring more than three days absence.

On average each accident at work led to 15 days lost from work, which grosses up to 22.1 million days lost because of work-related ill health (e.g stress at work, mesothelioma and musculoskeletal disorders) and 4.4 million because of injury. The number of cases of mesothelioma (caused by inhalation of asbestos) has increased substantially since 1968, when 153 people died, to 2321 in 2009. The numbers of asbestos related cancers are expected to peak around 2016. The HSE estimates that the number of occupational cancer related deaths is around 8,000 per annum.

The HSE reports that around three-quarters of new work related conditions were either stress, depression/anxiety or musculoskeletal disorders.

Road Traffic Accidents

According to the Royal Society for the Prevention of Accidents (RoSPA) Great Britain has one of the best road safety records in the world, but shockingly 1 in 5 people are killed on the roads each day. The main causes of accidents include speeding, drink driving, inexperience and failing to look properly.

Accidents on the road can lead to fatalities and injuries of the utmost seriousness down to more minor (but nonetheless painful and unpleasant) whiplash injuries.

Road Traffic Accidents can raise difficult legal and procedural problems, even in less serious cases. It is important to take specialist advice from whiplash solicitors if you have suffered a neck or back injury.

Accidents at Work and on the Roads originally appeared on Jobsworth by Michael Scutt on 22/12/2011.

UK Banks Facing Rising Lawsuits over Stress? Really?

Michael Scutt — Tue, 15 Nov 2011 16:52:41 +0000

Banks are facing a rising tide of stress at work claims, according to Reuters yesterday. The report refers to anecdotal evidence by GQ Employment Lawyers to the effect that the number of “stress related lawsuits” is on the increase, but doesn’t say what type of lawsuits, nor give any statistics to back up the assertion.

Never mind, the Health & Safety Executive’s own statistics for 2010/11 state the following;

“The number of new cases of stress, depression or anxiety has fallen from an estimated 254,000 in 2001/02 to 211,000 [in 2010/11]” *

Whether that downward trend will continue in 2011/12 or be broken as the report suggests we will have to wait and see. In my view it is unlikely that we will see a tidal wave of stress claims in the courts or Tribunals for various reasons – see below – but because when the next recession, which looks inevitable now, strikes it will be accompanied by job losses. The CIPD produced a report yesterday predicting a “slow, painful contraction” in the jobs market in Quarter Four this year as many employers impose a hiring freeze. It isn’t actually predicting a rise in redundancies merely that once you’re out of a job you may find it hard to get another one.

I’ve acted for many employees over the years with occupational illnesses or injuries (including stress cases) and the one factor that usually concerns most, if not all of them, is the reaction of their employer if they bring a personal injury claim or assert their legal rights in some way. Bankers are prey to this concern just as much as any other workers, arguably more so if they think it might jeopardise their annual bonus. The other concern, which should be ameliorated by the banning of pre-job offer health enquiries by employers under the Equality Act but probably isn’t, is that having a lengthy spell off work with stress will render a job-seeker “damaged goods”.

If I‘m wrong and a flood of stress at work claims does arise there’s another important consideration to bear in mind. It’s relatively easy to commence a claim, start a protocol or issue proceedings, but quite another to win and recover compensation. Most employers faced with a stress at work claim aren’t likely to simply roll over and pay up.

There are several possible claims; in negligence for personal injury, for harassment under the Protection from

Harassment Act 1997 (PHA), or for injury to feelings at an Employment Tribunal if the stress is caused by harassment on the grounds of sex, race, disability, age, religious belief or sexual orientation (known as “Protected Characteristics”) . All it says is that claims from financial services staff are increasing, in the face of challenging economic conditions, long working hours, the threat of redundancy as well as being the occupation that currently everyone loves to hate (well, it gives estate agents and solicitors a break I suppose).

To sue for personal injury in the tort of negligence (which is the type of claim you would make if you suffered a whiplash injury in a car crash or a back injury from lifting something heavy at work) a Claimant has to have suffered a medically recognised illness or injury. “Mere” stress won’t be enough, it has to go beyond that and will need to be verified by a medical practitioner, preferably a Consultant Psychiatrist. That will be expensive.

The first legal issue is whether the illness/injury was reasonably foreseeable to the employer, in other words would the reasonable employer have realised, or should they have realised, that an employee subjected to those particular working conditions would suffer a psychological injury or illness. That can be a difficult hurdle to overcome because mental illness tends to be “invisible” and most people don’t admit they have a problem until they become very unwell. An employer is entitled to view his/her staff as being ordinarily robust and able to deal with the ups and downs of the workplace unless they have particular knowledge to the contrary. It is in those cases where an employee has suffered mental illness, notified the employer of it, been off work as a result and then returned only to have another breakdown later on that have tended to be successful with claim for personal injury.

The second main problem tends to be in proving that the illness/injury was caused by or contributed to by the actions of the employer. That usually means a forensic examination of the Claimant’[s medical records to see if they have any other stressors in their life – such as a prior history of mental illness, or have been going through a divorce, in trouble with the police etc.

Finally, these type of claims tend to be very expensive to put together, usually vigorously contested by the employer’s EL insurer and, because the claim is taken through the Court (High or County), there is a risk of losing and having to pay the other side’s costs – at least until the Jackson litigation reforms are introduced and we have “Qualified One-Way Costs Shifting”.

Claims under the PHA are, perhaps, slightly easier if the Claimant can show a near criminal standard of harassment from, e.g. their line manager, but that sort of claim doesn’t help an employee who is grossly overworked and trying to do the work of three people. The ET claims for harassment and victimisation also require a “Protected Characteristic” to be the motivating factor in the employer’s behaviour.

Personal injury law is very unhelpful to people suffering from mental illness caused by the workplace. There won’t be a great increase in the number of claims going through the courts because the substantive law hasn’t changed.

HSE Annual Statistics 2010/11 p.5

UK Banks Facing Rising Lawsuits over Stress? Really? originally appeared on Jobsworth by Michael Scutt on 15/11/2011.

Workplace Accident Claims: the U.S experience

Michael Scutt — Thu, 18 Aug 2011 22:25:30 +0000

Personal Injury Awards are “Not Sacrosanct”

Michael Scutt — Tue, 16 Aug 2011 15:44:50 +0000

Last week I read a brief summary about a case where personal injury and family law crashed together in the Court of Appeal . I’ve not read the full case itself and if anyone has the link to it I’d be very interested to read it. It’s a surprising case because one of the parties, Mr Mansfield had suffered serious personal injuries when hit by a car in an accident in 1992 and had been awarded £500,000 for the loss of a leg and serious spinal injuries. The couple got together five years after the award was made to him which, if the remnants of my knowledge of matrimonial law still holds good, means that it was property acquired before the marriage and thus not a matrimonial asset. I’d welcome any comments from any Family lawyers out there reading this who can explain it.

The husband’s award would have included compensation for pain and suffering and loss of amenity, as well as his financial losses and, almost certainly, his anticipated future losses. As he lost a leg that would surely have included the lifetime cost of a prosthetic leg and its replacements, which don’t come cheap.

Unfortunately his marriage broke down, divorce proceedings followed and his ex-wife was awarded a lump sum of £285,000 from his personal injury compensation. Leaving aside the merits of the ex-wife’s claim it does, at first glance, seem like a surprising decision. The award of over 50% of his compensation to the wife in the financial settlement would thus risk leaving him (literally) legless.

Which takes precedence: the needs of the husband to rebuild his life following a significant injury or the needs of his family? On the basis of this decision the answer is the latter, the children’s needs trumped those of the father. The wife’s barrister said “No part of a personal injury awards is sacrosanct”. It seems a very harsh decision to me.

Thanks to the Ramsdens Family Blog for bringing this to my attention

Personal Injury Awards are “Not Sacrosanct” originally appeared on Jobsworth by Michael Scutt on 16/08/2011.

Are Stressed Workers More at Risk of Redundancy?

Michael Scutt — Wed, 25 May 2011 10:36:56 +0000

According to research by mental health charity Mind, workers fear that if they admit to being depressed or suffering from stress they will be selected for redundancy or “forced out of their jobs”.

Their statistics showed that 22% of those surveyed who had disclosed a mental health issue in a previous job had been fired. It’s a natural reaction and it undoubtedly happens, but proving that the selection for redundancy was because the employee said they were unwell is quite another matter. As the Mind website reveals, sometimes an employer can be very supportive. Sadly, that often isn’t the case.

Workers cited the following as being factors inducing stress;
Excessive workload
The threat of redundancy
Poor Management
Unrealistic targets

Stress is a nasty insidious illness when it becomes more than just being under pressure. It takes away a person’s ability to cope and lowers self-esteem. It can make lives utterly miserable. Not surprisingly employees don’t speak up about it when they fear they are becoming or have become unwell through stress: it’s a stigma and no one likes to think they will be perceived as not being able to cope.

However, if a worker thinks they have been made unwell by work are there any remedies available to them?

Termination of employment on the basis that the employee has been suffering from stress is unlikely to be a fair reason for dismissal, unless the employer has followed a thorough investigation and performance management process, which concludes that the employee is incapable of working. Selection for redundancy because the employee was suffering from stress would probably constitute unfair dismissal (provided the employee had 12 months continuous employment experience).
Dismissal because a person is suffering from stress or any other mental illness may be an act of discrimination under the Equality Act (disability discrimination) if the person would be deemed to be disabled within the meaning of the Act. It’s a complex definition but note that the illness has to endure for at least 12 months or be permanent to “qualify”.
If the illness has been caused (or exacerbated) by the work environment then it may be possible to bring a claim in the tort of negligence in the County or High Court. In order to succeed with such a claim the employee would need to show that the work conditions made it reasonably foreseeable that a person would suffer mental illness. Secondly, the work conditions must have caused the illness and that is often a major hurdle for Claimants because stress, depression etc can have many causes. The case of Sutherland v Hatton in 2001 made it difficult for Claimants to succeed with these type of claims.
Don't wait until it's too late
On the same point, because employees tend not to flag up the fact they are struggling to cope. Mental illness is often referred to as a hidden illness and it is often not obvious that someone is suffering until too late. The stress at work cases that have succeeded have often had a history of two bouts of illness: the first sets up that the employee has a problem caused by overwork etc and the second demonstrates that the employer was on notice that the employee had suffered illness and did not take steps to address the problem – cf: Walker v Northumberland County Council.
A claim under the Protection from Harassment Act 1997. An employer can be held vicariously liable for the actions of an employer if there have been at least two incidents of bullying or harassment which have caused the employee distress. However, the severity of the behaviour needs to be of a “near criminal standard” (Conn v Sunderland City Council) so “ordinary” line management, however assertive or micro-managing, might not suffice to found a claim.
An often overlooked remedy, because not that many employees have access to it, is Permanent Health Insurance (PHI) aka, Long Term Disability Benefit or similar. Some employers provide it as a “perk” of the job and if an employee goes on long term sick leave the employer can apply after a qualifying period (often six months) for the employee to be accepted onto the scheme. If granted, PHI will pay a percentage of benefit – usually 50 – 60% of full salary until the person recovers or retires or dies. The contract is between the employer and the insurance company and not with the employee, although it may be possible for the employee to assert their rights if the Contract (Rights of Third Parties) Act 1999 applies.

None of the above are wholly satisfactory and the law really does not adequately assist employees who have been made mentally unwell by their workplaces. Claims in negligence at (3) above are highly expensive to run and have poor success rates. More fundamentally all litigation is an unwelcome prospect, particularly if you’re unwell.The effects of it can be mitigated to an extent by having an early mediation to resolve the issues, but that requires both parties to be prepared to negotiate.

For employees who do not have 12 months continuous employment experience and thus cannot bring a claim for unfair dismissal or do not qualify as disabled under the Equality Act they are in a vulnerable position, assuming they do not have any other employment claims available to them (such as for whistleblowing or trade union membership etc). The ET does not award compensation for injury to feelings (ie personal injury) in unfair dismissal cases.

Get advice to find your direction

In all these cases though an employee suffering from mental illness faces the prospect of difficult and expensive litigation or negotiations, probably at a time when they feel least able to cope with it. One answer is to find another job and move on – often that removes the cause of the stress and enables the person to get better but that may be easier said than done.

One strategy we often advocate in situations where the employee is becoming unwell is to either file a grievance and in addition, or as an alternative, to write to the employer on a without prejudice basis setting out the problem and seeking a negotiated settlement. This can be a quick and relatively cheap solution, but will only work where the employer considers that they are at risk.

Having said all the above, it is no wonder that some employees do think it best to keep their worries to themselves. Being sacked might seem dreadful (and it is), but suffering from stress or depression can be a whole lot worse. As ever, if you’re worried about your own personal position, don’t rely upon the above comments but go and get advice – not just from a solicitor but from a charity like Mind where you can speak to people who have “been there”.

Mind is running a campaign at the moment to promote mental health in the workplace – click here for the “small simple steps” you can take to make the workplace a better place.

The above does not constitute legal advice and should not be relied upon. Go and speak to a solicitor instead!

UK Banks Facing Rising Lawsuits over Stress? Really?

Are Stressed Workers More at Risk of Redundancy? originally appeared on Jobsworth by Michael Scutt on 25/05/2011.

Is the Workplace About to Get More Dangerous?

Michael Scutt — Mon, 28 Mar 2011 09:00:52 +0000