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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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I had an accident at work and have been absent due to this

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I had an accident at work and have been absent due to this for 13 months. The injury will incapacitate me long term so I cannot return to my job as nightshift manager. From day one of my absence I didn't get paid (only SSP) which has now stopped and I am on ESA. I have had one welfare visit from the HR team and I was the one that made contact on a monthly basis to discuss my injury and sick note. I am still employed by my employer but my sick notes now go to the benefits office. I have a welfare meeting planned in for next week (which I have pushed for and which has been cancelled several times on my employers side) and I'm unsure about what my rights are. I have worked for the company for 14 years and they are undergoing a merger at the moment, with redundancies in the pipeline etc. What should I be discussing at my meeting next week?
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hi my name is ***** ***** I am happy to help you today.

taratill :

Can you tell me a bit more about the accident, do you believe that the employer was in any way at fault?

Customer:

My role as a nightshift manager is hands on so I would carry out any tasks that needed doing to help the team i.e. jump on the forklift to move pallets, go to another warehouse to pick up stock required for orders, load vans with the lads, pick and make up the orders. My injury happened when I was 'cubing' which is lifting down toilet pans and putting them in boxes with basins ready for orders coming through. This particular night I was helping to cube and whilst lifting a toilet pan and bending down to put in the box I felt my back rip - excruciating pain. I managed to stretch through it and got through the rest of the night. I recorded it in the accident book and made my manager aware. My injury has been diagnosed as degenerative spinal injury and has got worse over the months (I'm temporarily walking with a stick). I'm 52. This injury could be classed as a 'sticky' one with my employer. My role as manager has always been hands on (my manager knows this and has even given me tasks to carry out during the night). However, this is not identified in my job description but is more custom and practice within the company.

taratill :

Ok had you had correct training on lifting and did your employer ensure you carried out procedures using the correct training?

taratill :

Does your doctor believe that your current injury is as a direct result of this accident?

Customer:

Over the years I have had manual handling training and yes I did have training at my current employers but this would have ben a number of years ago.

Customer:

The company requested a medical report from my Dr and he made comment in this report that the injury suffered was of a direct result of this accident.

taratill :

Was your employer aware that, due to the pressures of your job, you may not have always followed procedures?

Customer:

My priority was to get the job done, any way I could and report what time we finished and left the warehouse tidy.

taratill :

This is not about getting you into trouble. I'm trying to assess to what degree your employer is responsible to your injury. If your employer knew you cut corners and turned a blind eye then they may be legally responsible for your accident and any loss you may suffer as a result. Do you think they knew this?

Customer:

Its a difficult one to answer because being the only manager on site at night my employer could argue that they could have known. I believe they did but that would be very difficult to prove. My manager know the amount of work we had to get through and has come up through the shop floor so knows what's involved. The bot***** *****ne is my employer could argue that I shouldn't have been hand on that's not my job (although they know that's what we do), my injury was my fault because I wasn't paying attention (although the workload put me and my team under pressure).

Customer:

There is another point I'd like to mention. In the last staff newsletter I received there was an article about the nightshift and a photo of my supervisor who I believed was covering for me in my absence. However, under his photo he was introduced as the nightshift manager - no explanation given about where I am etc. Maybe I am reading too much into this but is this something I could question my employer about.

taratill :

Ok I will answer in full in a moment but can you just confirm you were not asked to sign any health and safety policies in the 12 months prior to your accident?

Customer:

Not that I can recall. Thanks.

taratill :

Ok, the first thing you can do is notify them at the meeting to tell their insurers that you have a personal injury claim as a result of your accident. You should point out to the employer that inadequate training and measures were in place to protect you from an accident and you have suffered a loss as a result and you intend to bring a claim. You may need to get some legal asisstance with brining a claim. If you have household insurance that may include legal expenses cover as it often does. In addition you should raise the issue about the manager and say that as far as you were aware you were still the manager albeit that you are now off sick.

taratill :

it may be that your employer will try to terminate your employment on the grounds of capability. It is entiteld to do so if there is no prospect of you returning to work in the near future.

taratill :

Unfortunately this is not a redundancy situation so your employer does not have to pay you any redundancy pay, unless your role is specifically made redundant during the process.

taratill :

It may be that your employer will agree to make you a redundancy payment. You could ask if they would be prepared to enter into a settlement agreement.

taratill :

If you have any further questions please do ask.

Customer:

Many thanks. I'll consider the above, lots to think about. I'll come back to you if there's anything else.

taratill :

No problem, come back to me at any time. I would be grateful if you would take the time to rate my answer as I am not otherwise credited for my time.

taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience: 15 years experience of advising on employment law matters
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