Accident at Work

[joesoap]

I'll keep this is as short as possible as there could be a long way to go yet but basically;

 

Mrs Soap had an accident at work early August. The accident was reported in the proper manner she was interviewed by a Line Manager accordingly. Mrs Soap was off work for 6 weeks interrupted by numerous telephone calls from this Line Manager bullying her into going to see the firm's physiotherapist. She did eventually. Unfortunately, there were no witnesses to the accident and no -one in the area to corroborate (their word) her statement.

 

The firm did not and have not reported the accident to the HSE. The HSE only got to know about the accident from Mrs Soap. After no contact from the firm for about 6 weeks, they decided to send her letter advising her that an investigation had been carried out and a disciplnary against her will be initiated on the grounds that she falsely reported an accident. To say she was gob - smacked would be an understatement! The letter was acknowledged accordingly and she is now waiting for her "Disciplinary Invite". Mrs Soap decided to contact the HSE and enquire if the accident had finally been reported. HSE informed her that they had been in contact with the firm and had been told that an accident did not take place. HSE accepted this.. Now, knowing the HSE Laws inside out nearly, the accident should have been reported under RIDDOR within the 10 days of the accident occurring, regardless of whether or not the firm had doubts about it being an accident. I have taken the HSE to task this morning and will await further developments.

 

Unfortunately, Mrs Soap is not a member of a trade union but we have been to see a solicitor. At the moment we've decided to do nothing (apart from gather all evidence together) and attend the disciplinary whenever they decide it's going to be. I'm a bit wary of this because if she is dismissed she may have to approach an Employment Tribunal. As far as I am aware, any approach has to be made within 3 months of the incident in question. I may have read this wrong so if anyone can enlighten me, I'd be most grateful. It is 11 weeks since the accident so I think that the firm are using delaying tactics. I may be jumping ahead as the hearing has not yet taken place but in our opinion, as the firm have accepted that Mrs Soap was genuinely off sick (that's stated in her letter) but have then decided she has falsely reported an accident, they have questioned Mrs Soap's integrity and also placed her in an untennable position in respect to her work place. It could be a good idea to jump ship and file for Constructive Dismissal before this goes any further but we have doubts. Any thoughts on this anyone?

[andie_303]

I believe the 3 month rule begins from dismissal becoming effective not the time of incident but hope someone else will confirm this for me.

 

Sorry to hear about this and hope Mrs Soap is duly recovering

[joesoap]

I believe the 3 month rule begins from dismissal becoming effective not the time of incident but hope someone else will confirm this for me.

 

Sorry to hear about this and hope Mrs Soap is duly recovering

 

Cheers andie

[elpulpo]

I agree with Andie_303, it would be 3 months from the date of any dismissal. ( See Andie, we do agree about something! )

 

My understanding also is they shouldn't hold any sort of disciplinary until Mrs Soap is well and back at work. Not sure that's written in stone, but certainly the policy of the large organisation I used to work for.

 

I think the company will find themselves in serious 'poo' if it transpires they're covering this up.

Now I don't claim to be the employment expert, but aren't there ways to uncover internal information, 'subject access requests'? Maybe someone else here can comment? Not something I have knowledge of.

 

I'd hold your horses on the whole 'constructive dismissal' route. Notoriously difficult to prove as I understand, and one must exhaust all channels of formal grievance before doing so, you can't simply just quit and then make a claim.

Again, someone else is probably better placed to advise you.

[andie_303]

I agree with Andie_303, it would be 3 months from the date of any dismissal. ( See Andie, we do agree about something! ) quote]

 

I don't mind people disagreeing with me elpulpo - but many don't live to tell the tale

 

Sorry back to the thread - this is good advice and I think it is telling that they did not contact RIDDOR - whether they thought the accident had happened or not an employees absence over 3 days should have been reported.

It would then be up to RIDDOR through the LA/HSE to determine whether the incident was merited or not

[joesoap]

Thanks for the info peeps, all info gratefully accepted. The more the better. Mrs Soap has returned to work. She was off 6 weeks, had a med cert for an additional week but returned to duty; bit pressure on her I think. Now, because she is a nice person (soft), Mrs Soap has not made a claim for compensation because of the injury. I am of the opinion that she should do so now (the firm's really getting on my threps) under no win no fee. However if she did this, would it effect any action she might have to take later if she was dismissed or would it be a totally different claim?

[elpulpo]

Too right she should! Providing the accident wasn't her fault, then her employers are liable, surely that's why they're trying to cover things up?

 

Can't see how it would have any relevance to an unfair dismissal claim, other than to make it an even bigger claim.

In fact, were she not to make a personal injury claim, it might be implied that she's conceding that no accident occured in the first place, which is what they're trying to argue.

Might warn 'em off taking any disciplinary action at all.

By the way, how long is it since they formally made the accusation of misconduct? If she's back at work now, they have to deal with it promptly. They can't leave the matter for long and then bring it up later.

 

She shouldn't have gone back to work when still signed off sick by the way; if she'd of had another accident, then the employer's insurance company wouldn't pay out, as I understand it. They shouldn't let her start 'til she's well.

[elpulpo]

Ah! Threps! I got it at last.

Does she work for a firm of merchant bankers by any chance?

[MandM]

Without giving too much away............what 'type' of accident was it? Was she carrying out her normal work duties and slipped on the stairs or was the accident spcifically work related?

 

In other words, was the accident as a direct result of the task she was carring out. If so, had a risk assessment of the task been carried out and had any specific training been given higlighting the risk?

 

M

[MandM]

To elaborate, this is from HSE site regarding accidents reportable under RIDDOR. this applies specifically to work related accidents. Hope it helps.

 

M

 

What must I report?

 

As an employer, a person who is self-employed, or someone in control of work premises, you have legal duties under RIDDOR that require you to report and record some work-related accidents by the quickest means possible.

 

You must report:

 

 

 

• deaths;
  
• major injuries;
  
• over-3-day injuries – where an employee or self-employed person is away from work or unable to perform their normal work duties for more than 3 consecutive days;
  
• injuries to members of the public or people not at work where they are taken from the scene of an accident to hospital;
  
• some work-related diseases;
  
• dangerous occurrences – where something happens that does not result in an injury, but could have done;
  
• Gas Safe registered gas fitters must also report dangerous gas fittings they find, and gas conveyors/suppliers must report some flammable gas incidents.
  

 

RIDDOR applies to all work activities but not all incidents are reportable. If someone has had an accident in a work situation where you are in charge, and you are unsure whether to report it just call the Incident Contact Centre (ICC) on 0845 300 99 23. .

[joesoap]

Without giving too much away............what 'type' of accident was it? Was she carrying out her normal work duties and slipped on the stairs or was the accident spcifically work related?

 

In other words, was the accident as a direct result of the task she was carring out. If so, had a risk assessment of the task been carried out and had any specific training been given higlighting the risk?

 

M

 

Hi MandM, yes she was carrying out her normal duties, needed to crawl along the floor to get under a beam (don't ask) lifted her head too early and banged it off the beam. As far as she knows a risk assessment has been made. No one has actually said "be carefull".

 

ElPulpo, well done. Got yours straight away, we've got one messing around with my football club.

[elpulpo]

I think they're involved in pretty much every football club in britain. Put mine down 2 leagues

[joesoap]

I think they're involved in pretty much every football club in britain. Put mine down 2 leagues

 

And here's me thinking there's only one M i k e a s h le y.

 

Anyway, forgot to mention. Accident on early August. Returned to work mid September. Notice that they were going to initiate disciplinary action in letter dated mid October. They apologised for the length of time it has taken for the "investigation". Methinks they are taking the mickey!

Edited October 29, 2009 by joesoap
Dates

[MandM]

Hi MandM, yes she was carrying out her normal duties, needed to crawl along the floor to get under a beam (don't ask) lifted her head too early and banged it off the beam. As far as she knows a risk assessment has been made. No one has actually said "be carefull".

 

 

As far as the HSE are concerned they are pretty vague on what constitutes a perfect risk assessment BUT the staff or their representatives (line manager) must be involved in the process. They will have to prove this was the case - not you.

 

Secondly, even if this falls outside of the scope of the HSE then a claim for any loss or expense against the proprietors insurers would probably be another route you could look at (need someone on here that knows a bit more about that than me to advise )

[MandM]

And was she working alone or supervised?

[joesoap]

Personal Injury claim now made on line.

 

Working alone and unsupervised.

[MandM]

Also, without informing the employer (ithink) you could find out what the HSE have in the way of information on Mrs Soap using the Freedom of Information Act 2000.

 

Again, the following information is lifted from the HSE site (sorry copyright people lol)

 

M

About HSE Freedom of Information

 

The Freedom of Information (FOI) Act 2000 gives individuals the right of access to information held by public bodies. FOI applies to all public bodies including government departments, the police, local authorities, schools and hospitals/surgeries etc. The Act potentially gives you the right of access to all types of recorded information and is available to anyone without restrictions on nationality or geographical location or the age of the information.

Public bodies must tell applicants whether they hold the information sought. If they do hold it, they must provide the information to the applicant unless the information is subject to one of the exemptions in the act. Further information can be found on the Ministry of Justice website

 

[MandM]

And just for good measure here's the link from the HSE site that should give you all the info you need regarding their approach to FOI.

 

If you can get this info before tackling the employer i'm sure it'll shore up your armoury somewhat. best of luck.

 

M

 

http://www.hse.gov.uk/foi/foiprocedures.pdf

[MandM]

And one last thing (lol, I can't stop reading this stuff on the HSE site) I found another little item on there which may help you with the so called disciplinary hearing that may or may not happen;

 

 

Employment protection

 

All your employees are protected by the Employment Rights Act 1996, as amended, against suffering any harm because of any reasonable actions they take on health and safety grounds. This applies regardless of their length of service.

 

Employees, including health and safety representatives, should not suffer harm, for instance by being denied a promotion or being dismissed unfairly, because they:

 

• carry out, or propose to carry out, activities that you have assigned to them in connection with preventing or reducing health and safety risks;
  
• perform, or propose to perform, functions they have as union-appointed or employee-elected health and safety representatives, or health and safety committee members;
  
• stand as a candidate in an election to be an employee representative or participate in the election by voting;
  
• bring to your attention, by reasonable means, a concern about situations at work that they reasonably believe are harmful, or potentially harmful, to health and safety;
  
• reasonably believe a situation to be of serious and imminent danger and - because they could not reasonably be expected to avert it - they leave or propose to leave the workplace or any dangerous part of it, or if they refuse to return while the danger continues; and
  
• reasonably believe a situation to be of serious and imminent danger, and take or propose to take appropriate steps to protect themselves and others. This is to be judged by looking at all knowledge, facilities and advice available at the time.
  

You could be taken to an employment tribunal if you penalise employees in this way, see Department for Business, Enterprise & Regulatory Reform website

 

 

It should certainly add some spice to her defence should they choose to continue with the threat.

 

M

[raydetinu]

If HSE do get involved and they might, they will want to see risk assessments and H & S method statements for the procedure she was performing.

Is Mrs Soap aware of any method statement for the pricedure, was she given adequate advise on the risks and any procedure to mitigate the risks ie PPE a hard hat so so does not bang her head!

Thsi could reduce her claim a bit if she did not wear one and the risks were known. Remember the first person responsible for your health and safety is you.

[joesoap]

Mrs Soap was wearing a hard hat, not of the type one sees on construction sites but a hard hat nevertheless.

 

Good question about the Risk Assessment (RA). It is a piece of machinery that has recently had an extension attached. She knows that a RA has been done on the original but not sure about the extension. That's another question for her at the disciplinary. Thanks for bringing that to our attention.

[raydetinu]

Has her training or induction on the use of the machine been updated and recorded.; see use of equipment regs (PUWER ).

[joesoap]

Has her training or induction on the use of the machine been updated and recorded.; see use of equipment regs (PUWER ).

 

No.

[joesoap]

Too right she should! Providing the accident wasn't her fault, then her employers are liable, surely that's why they're trying to cover things up?

 

Can't see how it would have any relevance to an unfair dismissal claim, other than to make it an even bigger claim.

In fact, were she not to make a personal injury claim, it might be implied that she's conceding that no accident occured in the first place, which is what they're trying to argue.

Might warn 'em off taking any disciplinary action at all.

By the way, how long is it since they formally made the accusation of misconduct? If she's back at work now, they have to deal with it promptly. They can't leave the matter for long and then bring it up later.

 

She shouldn't have gone back to work when still signed off sick by the way; if she'd of had another accident, then the employer's insurance company wouldn't pay out, as I understand it. They shouldn't let her start 'til she's well.

 

Injury at work claim initiated, Mrs Soap has spoken with a solicitor and they will take the claim on, waiting for the usual forms etc.

 

Fortnight now since she received the "disciplnary" letter. No further communication since then; how long's "too long"?

 

I said she shouldn't go back when a sick note was still "live" but she just wanted them off her back. She thinks differently now as you can imagine.

[elpulpo]

I've had a look on various employment law sites, I can't find any info regarding timing, other than that the process should be carried out 'without delay'.

I suppose it all depends on the individual circumstances. Can you think of any reason why it shouldn't yet proceed? Are they interviewing people etc?

One thing, They're alleging that she's 'falsely reported' an accident to the HSE? That's a very serious offence; were it true (which it's evidently not), an act of Gross Misconduct, no less.

In such a circumstance, why therefore, have they not suspended her pending the outcome of any disciplinary action?

What they can't do is just put the accusation on hold, and then months later slap it on the table like a 'get out of jail free card'.