According to the Health and Safety Executive (HSE), there were 1.7 million reported instances of work-related injury or illness in the UK during 2024 alone.
A lot of those instances will, unfortunately, turn into personal injury claims.
As you may know, where an employee suffers a physical injury at work, they have three years from the date of injury to raise a court action for compensation. This compares to the three-month deadline for many employment law matters, so the difference is quite stark.
Requests for documents/disclosure
During the process of a personal injury claim, the employee may request various documents from the employer. The documentation that they are requesting should be relevant to their claim and the employer should be mindful when disclosing documents, including considering whether documents could be subject to legal or litigation privilege and therefore are not required to be disclosed.
Subject Access Requests (SARs) are frequently used to obtain information from employers as a precursor to a personal injury claim. Employers must comply with statutory deadlines, and it is important to note that SARs do not override privileged information.
Insurance
When a personal injury claim is brought against an employer, the employer must notify their liability insurer, or they risk coverage being refused.
The insurer may appoint a solicitor or loss adjuster to investigate and defend the claim, and they tend to take an economic approach. This may involve looking to settle and buy off the risk as quickly as possible. An employer can make its views known to the insurer as to how it would wish the claim to be dealt with.
There are some occasions when an employer will wish to consider the impact of terminating an employee’s employment on an existing personal injury claim. In other cases, decisions will need to be made around continuing to pay the employee who has brought the claim. What might be best for the company might not be best for the insurer.
These decisions need to be made carefully although, in general, it is best to avoid the existence of a personal injury claim when determining ongoing employment decisions.
Stress at work claims
Stress at work claims intersect personal injury law and employment law. For a personal injury claim to be successful, it requires two elements:
- The employer must have actual or constructive knowledge of the pressures on employee which may cause them to suffer injury as a result; and
- The employee must develop a recognised psychiatric condition. This condition must be confirmed by an expert medical opinion.
Settlement agreements and double compensation
When entering into a settlement agreement with an employee regarding termination, there should be consideration towards personal injury claims and whether these are to be included or excluded.
Where there are known potential personal injury liabilities, including for stress at work or harassment, the agreement must be drafted in a way that clarifies whether the personal injury claim will survive the employment claim settlement. Sometimes employees seek to negotiate higher termination packages to cover personal injury risks and ensure everything is caught.
It is important to note that when drafting agreements, an employee cannot waive any future, unknown personal injury claims. For example, if an employee unknowingly develops an asbestos related condition after signing the agreement, they can still pursue a later claim despite any waiver in the agreement.
Top tips for employers
- It is essential for employers to act promptly in gathering documentation of any evidence relating to the complaint. This can be done by carrying out investigations, gathering witness statements, CCTV, etc. It is also important for employers to review their safety procedures/policies and ensure managers know how to follow these procedures/policies.
- Take careful consideration as to whether any requested documents are privileged and whether they are required to be disclosed.
- When a personal injury claim is raised, notify insurers as soon as possible. It is also useful to notify insurers in situations where you believe a claim may be raised.
- Ensure that settlement agreements correctly reflect the position on whether a personal injury claim will survive an employment tribunal claim or not.
If you’re dealing with a personal injury claim or want to make sure your business is prepared, get in touch with our team for tailored advice and support
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