What you need to know when pursuing a Personal Injury and Employment claim at the same time

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Who are BL Claims Solicitors

BL Claims Solicitors specialise in personal injury, clinical negligence and travel claims, providing our clients with hands-on support, nationally.

We are rated as one of the top firms in the UK and believe in speaking to our clients in jargon-free language and ensuring you're speaking to a highly qualified lawyer right from the outset

Often we are approached by clients who have had an accident in their workplace, if they then can't go back to work their employers decide to dismiss them. In this guide, our Personal Injury and Employment solicitors advise on the implications of bringing a Personal Injury and separate Employment claim out of the same facts.

I've had an accident at work and now I have been dismissed. Can my employers do this?

Yes they can, even if the accident and your injury was your employer's fault.  Any business has a commercial basis and when it is no longer viable to employ someone because that employee is unlikely to be able to return to work within a reasonable period of time they need to consider what steps, if any, to take to protect their business.  However, it is not as simple that.  They cannot simply dismiss you; procedures need to be followed.

What procedures must they follow?

Before dismissing you, your employer must make a proper enquiry into the actual state of your health, its likely duration and its effect upon your ability to perform your tasks at work. 

Medical conditions and jobs vary and so there is no one standard procedure that will be followed.  It is therefore advisable to take legal advice on whether an appropriate procedure is being followed in your case.  However, you should usually expect your employer to consult with you about the situation and ask you for your own views on your health and abilities.  Most of the time, a medical opinion should be obtained which deals with the likelihood of a return to work.  This medical opinion should also be discussed with you.  If you are unable or unlikely to return to working in your former role, your employer must look at whether there is any alternative employment available.  If it is determined that you are disabled within the meaning of the Equality Act 2010, your employer is also under a duty to determine whether any reasonable adjustments could be made to allow you to return to your role before dismissing you. 

I am pursuing a personal injury claim against my employers because of my accident at work.  Do I need to tell my personal injury lawyer that I have been dismissed?

Yes you do. 

Why?

This will directly affect any future loss of earnings claim.  It may be that you are now at a disadvantage on the open labour market due to your injury sustained at work.  You may find it difficult to find alternative employment.  You should be compensated for this.

Who do I turn to if I need employment advice due to my dismissal?

Contact your personal injury lawyer in the first instance.  He or she should be able to recommend an employment lawyer.  It is advisable that the two lawyers are both kept fully appraised.  Most lawyers are happy to liaise with each other so that they each act in your best interests.

Do I have to tell my personal injury lawyer if I decide to pursue an employment claim as well?

Yes you do.

Why?

Your personal injury claim may include a claim for loss of earnings, both past and future losses.  As an employment claim may also include a claim for loss of earnings there is a risk of double recovery.  This must be avoided at all costs or you may end up in a position where you have to repay your former employer the monies that may have been overpaid.

Is there anything else that I need to tell my personal injury lawyer?

Yes.  If you are intending to enter into any type of agreement to settle your employment claim it is imperative that you advise your personal injury lawyer before entering into such an agreement.  If you do not, the consequences to your personal injury claim may be catastrophic. 

You should be aware that it is possible to enter into a legally binding settlement agreement without even having signed some paperwork and so it is crucial that you tell your personal injury lawyer of any form of settlement offers that are being made to you to settle your employment claim.

What types of agreements can be used to settle employment claims?

A Compromise Agreementis a specific type of contract between an employer and its employee (or ex employee) under which the employee receives consideration, often a negotiated financial sum, in exchange for agreeing that he or she will not pursue or bring a claim against the employer as a result of any breach of a statutory obligation by the employer. 

A COT3 Agreement is similar to a Compromise Agreement but is usually a shorter, more succinct agreement which is negotiated via an ACAS Conciliation Officer.  ACAS is an independent, government funded organisation which offers a service to parties involved in employment tribunal claims.  Part of this service is to liaise between the employer and the employee involved in an employment tribunal claim in order to facilitate a settlement. 

Would settlement of an employment claim affect my current personal injury claim then?

Yes it would.   In settling your employment claim, there is a real risk that you might be settling not just your employment claim, but your personal injury claim too.  The wording contained in the settlement agreement might mean that you waive your right to pursue your personal injury claim completely and will therefore give up your right to claim compensation for your injury.  Any progress and/or negotiations with regard to your personal injury claim may become null and void.

It is imperative that you receive advice from your employment lawyer in this regard.  Your employment lawyer should fully explain the effects of the agreement that you are about to enter.

Your personal injury lawyer will be happy to liaise with them where necessary.

If I settle my employment claim, does this mean that I will also be settling future claims against my employer/ex-employer?

Not usually.  Such an agreement cannot prevent you from bringing future claims in respect of injuries that have not arisen at the time that you entered into the settlement agreement.  Again, it is important that your employment lawyer explains to you exactly what rights you could be potentially signing away and that he/she liaises with your personal injury lawyer to be clear as to what claims you are, or may be pursuing.

So if I decide to instruct an employment lawyer, do I have to tell them about my personal injury claim?

Yes.

Why?

For the same reasons as stated above.  If your employment lawyer is unaware of your personal injury claim they may advise you to enter into an agreement to settle all claims against your employer.  Such an agreement may prevent you from continuing with your personal injury claim.  Conversely, if they are aware of your personal injury claim, then the settlement agreement can be worded so that your existing claim may continue to its normal conclusion.  As such, you will be compensated accordingly with regard to both your employment and personal injury claims.

Further, any loss of earnings claim will not be duplicated and you will not find yourself in a position where you have to repay your former employer.

As a final point of note, if you do not tell your employment lawyer about your personal injury claim, you may find yourself in a position where you are in breach of the agreement that you have entered into.  In such circumstances, you will also forfeit any compensation agreed in respect of your employment claim. 

You may end up with nothing.

So is it best that I ensure that both my personal injury lawyer and my employment lawyer are aware of each claim?

Yes.  Without any doubt.

What about stress?  Who do I turn to if I wish to pursue a stress at work claim?  A personal injury lawyer or employment lawyer?

Either. But the rules differ.

Why

The personal injury route

It is difficult to succeed in a claim for stress at work when perusing a claim through personal injury channels. 

You have to have a medically diagnosed psychiatric illness or injury to succeed. 

Your work must pose a real risk of causing such an injury and your employer must have known, or ought to have known that you were at risk.  It is usual that you need to have been off work on at least one previous occasion and your employer needs to know that it was due to stress at work.

Your employer must have failed to take adequate steps to reduce the risk.

Your psychiatric injury must have been caused or materially contributed to by the work that you were undertaking and your employer's breach of duty.

There are additional tests to the above and it is accepted by the Courts that an employer is entitled to assume that an employee can cope with the normal pressures of their work unless they have reason to believe otherwise.

Such claims are notoriously difficult to prove.  That said, do not hesitate to contact us if you need further information or a more detailed explanation as to the personal injury route.

The employment route

An employer owes a number of legal obligations to its employees in order to safeguard their health and general wellbeing. 

The law in this area is complex however if your employer is acting in breach of its legal obligations to you then you may be able to resign and claim constructive dismissal. 

If your stress is related to a 'protected characteristic' e.g. age, race, religion or belief, sex, sexual orientation, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, then you may also be protected under the discrimination legislation. 

If your employer is causing you to be stressed, then we would strongly recommend that you contact an employer lawyer to discuss your particular circumstances.

BL Claims Solicitors are here to help

If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at info@blclaims.co.uk