When it comes to accidents in the workplace, ask any employer’s liability lawyer the question they get asked most often by prospective workplace accident claims clients, and we can almost guarantee it would be along the lines of:

“I’ve had an accident at work that wasn’t my fault, but I’m scared to make a personal injury claim for fear of losing my job if I do.”

Similarly, some employees considering whether to take legal advice from a specialist workplace accident solicitor to make a personal injury claim against the business that employs them worry that putting in a claim will create a bad atmosphere at work or that other companies in the same sector will get to hear that they are ‘trouble makers’.

Under English law, you can’t be fired by your employer for standing up for your right to pursue a workplace accident claim if they have failed in their duty to keep you safe while at work.

However, the fear that an employer might sack you, albeit unfairly, may still make you think twice about claiming. 

The fact of the matter is that most employers wouldn’t even consider firing you for claiming, and others won’t do so purely because they know the law prevents them—that if they did, you would have solid grounds for bringing an unfair dismissal claim, one which you would probably win. 

However, some employers will fire you if you hint at making an accident at work claim and are either ignorant of the consequences or content to take their chances even if they know what they are doing is against the law. Such dismissals usually happen as retaliation for the employee making an injury claim.

Many employees are still unaware of their right to claim compensation for an injury sustained in an accident at work that wasn’t their fault, and it appears some employers are happy to let them remain in the dark.

Most employers understand that when an employee gets injured due to an accident caused by the organisation’s negligence or breach of duty of care, the right approach for them to take is to:

• do all they can to help their employee recover, 
• see that all the necessary steps have been taken to report and record the accident internally
• file a RIDDOR report with the Health and Safety Executive if the incident results in a fatality, serious injuries, some particular types of industrial disease or specified ‘dangerous occurrences.’
• undertake all the necessary steps to identify where they failed their employee and ensure procedures are put in place to avoid an accident of the same type happening again.

Why do some employers act so defensively to accident at work claims?

There are numerous reasons why some employers act defensively when an employee makes an accident at work claim against their employer after a workplace accident. 

Some employers believe that someone who works for them shouldn’t bring a claim out of loyalty to their organisation, especially if the business is relatively small. 

Other employers view a claim by an employee as a personal insult or see not taking a somewhat aggressive stance as a sign of weakness. 

However, leaving aside some of the less logical reasons why some employers react adversely to a claim brought against them, for all employers, there is an overriding reason that even fair-minded employers can act out of character when faced with an employer’s liability claim, and that’s out of fear. 

The more serious workplace accidents can result in an employer facing an HSE prosecution. The consequences for not complying with health and safety regulations can be severe, including fines and even, in rare cases, prison sentences for senior management in the most severe cases. 

On a more fundamental level, the fear may be due to the actual or perceived effect the cost of paying out on a personal injury claim may have on the organisation’s next employer’s liability insurance premium.

Why should the prevention of accidents in the workplace be an employer’s number one priority?

One would hope that a high proportion of employers put the safety of their workforce as their number one priority for altruistic reasons, i.e., they selflessly care for their employees well-being.

For those for whom unselfish care isn’t reason enough, the prevention of accidents should be every employer’s priority because, by law, employers owe their workers a duty of care to take all reasonable steps to ensure their safety while at work.     

What is an employer’s duty of care to their employees?

Employers must ‘take reasonable care’ of their employees’ health and safety in the workplace. It is not an absolute duty of care but a duty to take ‘reasonable’ care. This qualification credits an employer who does all they reasonably can to keep the workforce safe, acknowledging that some accidents still happen despite everyone’s best efforts. 

For a brief look into how we define what constitutes actions that show an employer has done all they reasonably can to look after the safety of their workers, the common law of England and Wales draws on the following four areas in which the employer must demonstrate their reasonable efforts to keep their staff free from harm.

Employers must:

• Employ competent staff 

Employers can be held vicariously liable, in other words, made accountable, for a worker’s actions that cause injury to a fellow worker. The more competent the staff employed, the less likely they are to injure one another due to carelessness or irresponsibility.

• Provide adequate plant and equipment 

 ‘Plant’ is anything used in the course business’s day-to-day work, e.g., large machinery, office filing cabinets, chairs, ladders, forklift trucks and PPE.

If employees are supplied with defective equipment, whether that be tools, machinery, or office furniture, and they suffer injury due to the faulty nature of the equipment, the employer could be liable. 

Statutory legislation reinforces the common law duty of care in this area, specifically in the form of PUWER (The Provision and Use of Work Regulations) 1998.

If an employer can show they have:

• A system of regular inspection and servicing (documented)
• Reports outlining defects and breakdowns
• Promptly replace worn-out parts and equipment (documented) 
• Detailed the steps taken to repair or replace defective equipment

Suppose an employee is not provided with the plant or equipment they require, or enough equipment, to carry out their duties safely. In that case, this can lead to an employer being liable in the event of injury or illness resulting from the absence of such equipment.

 An example would be a welder who is not provided with safety goggles or someone who works with dangerous chemicals without all the PPE they need to work safely. 

An Act of Parliament reinforces the common law duty surrounding the provision of PPE at work: The Personal Protective Equipment at Work Regulations 1992. 

In a nutshell, this piece of legislation requires that PPE be supplied and used in the workplace whenever there are risks to health and safety that can’t otherwise be adequately controlled.

• Provide a safe system of work

Employers must put in place safe work systems that reduce the risk of accidents. Doing this requires the employer to implement procedures and guidelines identified during a risk assessment that flag potential hazards that could cause harm. It is then incumbent on the employer to eliminate the risks identified as much as reasonably possible.

• Keep the workplace a safe place to work in.

Slips, trips and falls are some of the most common causes of accidents at work. Keeping the floor clean, dry, and free from objects that could cause an employee to fall is a prerequisite for preventing these types of accidents from happening.

Summary

The law requires employers to do all they reasonably can to keep their employees safe in the workplace.

When considering the lengths to which an employer should go to keep their employees safe, the word’ reasonable’ indicates that employers do not need to be models of perfection. 

Employers could prevent most accidents at work by conducting thorough risk assessments and acting promptly to eliminate risks posed by the identified hazards or by providing the necessary and functioning equipment to allow their employees to do the job safely, regardless. Employers who are diligent in their attempts to reduce the number of workplace accidents will generally do so.

Should an employee suffer injury in an accident that appears to be the employer’s fault, they should be able to bring an employer’s liability claim, free from fear of being sacked or victimised.

Guest writer.