Accidents at work: case study

Elizabeth Stevens of Steeles (Law) LLP continues a series of articles on accidents at work with a case study.

A long-serving office employee, Jenny, has seriously injured her back and one of her wrists after a fall at work.

She was trying to reach some boxes of computer paper stored on a high shelf and stood on a chair, which then tipped over. She has been off work for a period of five months and sick pay is due to cease in a month's time. The future prognosis is uncertain, but the employer is aware that she still has problems sitting for long periods of time and her ability to type is severely impaired by the injury to her wrist.

The employer provides health and safety training for all its employees, which includes showing a video on manual handling. It has a facilities assistant who normally deals with any heavy lifting requirements but he was off sick on the day Jenny had her accident.

What potential liabilities does the employer face?

There are a number of liabilities that the employer could face in this scenario. It is possible that it could be in breach of health and safety legislation by failing to provide a safe system of work. While all employees are provided with health and safety training, if this is done only at the outset of employment it might be insufficient for long-serving employees who may not have had the training for a number of years. Refresher training should be provided on a regular basis to all employees. In addition, it could be argued that the employer failed to put in place safe systems of work by not making arrangements for heavy office equipment and supplies to be handled by someone suitable, in the absence of the facilities assistant. The storing of heavy boxes on a high shelf and the apparent lack of an appropriate step ladder are also factors that could be taken into account.

The employer was required to report the accident under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) as Jenny has been incapacitated for work for more than three days as a result of the accident. The report should have been made within 10 days of the accident.

While an individual cannot pursue an employer for a breach of health and safety legislation, the employer might be subject to enforcement action by health and safety inspectors, and potentially face criminal proceedings resulting in a fine.

Jenny could use the employer's health and safety failings as the foundation for a civil claim for negligence (otherwise known as a personal injury claim). She will need to be able to show that the risk of damage or injury was reasonably foreseeable, and the factors outlined above would be taken into account in assessing the employer's liability. The employer might have some grounds for arguing contributory negligence by Jenny, if it could show that proper training in manual handling had been given to employees and its procedures make it clear that Jenny should not have attempted to retrieve the boxes herself. This would reduce the amount of any compensation awarded against the employer.

In addition, Jenny might claim in the employment tribunal that the employer's failings amounted to a fundamental breach of trust and confidence, entitling her to resign and claim constructive unfair dismissal. The success of any such claim would depend on how the employer dealt with the incident and whether Jenny's resignation was in response to the employer's breach.

Finally, Jenny might also have grounds for bringing a claim of disability discrimination, if her impairment could be said to amount to a disability within the meaning of the Disability Discrimination Act 1995. The success of this claim would depend on what steps the employer had taken after the accident in relation to Jenny and whether, for example, it had properly explored any reasonable adjustments in order to facilitate Jenny's return to work. A failure to make reasonable adjustments or a decision to dismiss Jenny could amount to discrimination on the grounds of disability.

What should the employer do next?

It is important for the employer to establish the medical position before making any decisions in relation to Jenny. What is the future prognosis? If it seems the injury is likely to last 12 months or more and it has a substantial adverse effect on her ability to carry out normal day-to-day activities, it is likely to fall within the definition of a disability under the Disability Discrimination Act 1995. It might even be the case that the injury has exacerbated an existing condition, in which case it may already be sufficiently 'long term' under the definition.

If a medical report has not been prepared, or if one was written some time ago, it will be necessary for the employer to obtain an up-to-date report from Jenny's doctor and, if appropriate, an independent specialist or occupational health practitioner. The report should indicate the likely prognosis and whether a return to work is possible. It should also assist in identifying any possible reasonable adjustments that may facilitate Jenny's return to work. She will have to give her consent to the provision of this medical report.

Once a report has been obtained, it would be a good idea for the employer to arrange a meeting with Jenny (perhaps at her home), to discuss the report's contents and to explore possible options for a return to work. It is possible that adjustments in the form of modified equipment or reduced hours, or allowing Jenny to spend periods away from her desk, would be sufficient to enable her to return.

Should the employer pay additional sick pay?

Even if Jenny does have a disability, case law has established that the employer is not required under the Disability Discrimination Act 1995 to pay additional sick pay where contractual sick pay is exhausted, as a 'reasonable adjustment'. The Court of Appeal considered this issue in O'Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 CA. The Court of Appeal concluded that, since the purpose of making reasonable adjustments is to enable a disabled employee to return to work, additional sick pay would not achieve this aim. It agreed with the EAT analysis that to find otherwise would be to treat disabled people as 'objects of charity'.

The only exception to this is where the employer, through its failure to make reasonable adjustments that would have enabled an employee to return to work, is responsible for the employee's continued absence. This point was established by the Court of Appeal in Nottinghamshire County Council v Meikle [2004] IRLR 703 CA. Provided that there are no reasonable adjustments that the employer could make at this stage, Jenny will not be able to claim that the failure of the employer to pay additional sick pay amounts to disability discrimination.

Notwithstanding the legal position in relation to disability discrimination and reasonable adjustments, the employer might decide to exercise its discretion to extend sick pay. Whether it chooses to do so will depend in part on the circumstances in which it has exercised its discretion in the past. The employer should be careful to avoid any potential allegation of discrimination in the way it exercises its discretion and ideally should have formal criteria in place for the purpose of deciding when to extend sick pay. It is unlikely that the payment of additional sick pay would be regarded as an admission of liability for the accident by the employer.

Can the employer dismiss Jenny?

Even if it can be established that the employer was responsible for Jenny's injuries, and depending on the medical prognosis and provided there are no adjustments that could be made to allow her to return to work, the employer may be able to consider terminating Jenny's employment if her absence continues. Such a dismissal may be fair for reasons of capability, provided that a fair procedure is followed.

In a recent case, McAdie v Royal Bank of Scotland plc [2007] IRLR 895 CA, the Court of Appeal confirmed that, even though the employer was responsible for the employee's ill health (in this case, stress), it was not precluded from dismissing the employee. However, as a note of caution the Court of Appeal made it clear that in such a situation the employer would be expected to 'go the extra mile' before taking the decision to dismiss. This may mean, for example, permitting the employee a longer period of sickness absence (perhaps with additional sick pay) or seeking alternative employment before dismissing. Dismissal in these circumstances should be regarded as a last resort.

The Court of Appeal in McAdie confirmed the point made by the EAT that if employers were not able to dismiss employees who were incapable of any work fairly, they would have to retain them on their books indefinitely. This would clearly not be sustainable. The Court of Appeal said that tribunals should resist the temptation of being led by sympathy for the employee into awarding compensation for unfair dismissal when it is, in reality, an award of compensation for injury that should be pursued as a separate claim in the civil courts.

What else does the employer need to bear in mind?

It would be advisable for the employer to delay making any decision about Jenny's future employment until the medical position is clear. Additionally, in these circumstances it would be risky to dismiss her while she is still in receipt of sick pay. If the employer has any permanent health insurance policy in place, it should not take any steps that may jeopardise Jenny's ability to benefit under the scheme.

Jenny may qualify for ill-heath retirement (if she is a member of an employer pension scheme) and the employer should consider this before taking any decision to dismiss. The recent decision of the EAT in First West Yorkshire Ltd t/a First Leeds v Haigh [2008] IRLR 182 EAT confirmed that a reasonable employer should give proper consideration to an ill-health retirement scheme before it dismisses an employee for long-term sickness. In that case, the employer had not fully considered whether the employee's condition was permanent and had failed to obtain all the necessary medical evidence.

The next topic of the week article will be FAQs on accidents at work and will be published on 3 March.

Elizabeth Stevens is a professional support lawyer in the employment team of Steeles (Law) LLP (estevens@steeleslaw.co.uk)

Further information on Steeles Law can be accessed at www.steeleslaw.co.uk