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Ben Jones
Ben Jones, UK Lawyer
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Experience:  Qualified Solicitor
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My father has recently been made redundant (Dec 2013) and is

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My father has recently been made redundant (Dec 2013) and is considering pursuing a claim against his former employer - Duty of Care / Negligence in addition to a separate unfair dismissal claim that has already been lodged at the Employment Tribunal.
Can you please advise us on the Duty of Care / Negligence claim as to it's merits / probability of success through the courts and also advise if a solicitor can represent us on a no win no fee basis?

• February 2012 – DS (David Sage) & JS (Joan Sage) involved in a taxi accident in Dubai when DS was on company business whilst travelling to the office from the hotel. They were taken to a local hospital because DS had some muscle pain in his right shoulder but it was determined after test/s that they incurred no injuries.
• Summer 2012 – DS was undergoing physiotherapy as he was again detecting a pain in his right shoulder. DS also advised his GP of this who recommended the physiotherapy.
• September 2012 – DS collapsed in his hotel room whilst on company business in Dubai. As his wife was present in the hotel room at the time, she was able to raise the alarm immediately so that medical assistance could be summoned. DS was hospitalized for two days in Dubai and after some tests was diagnosed with a minor form of generalized epilepsy. After returning to LHR, his GP referred him to Hammersmith Hospital for further treatment & tests which didn’t happen because of the lengthy waiting list at a NHS Hospital. So through the company medical insurance, DS then referred himself to Clementine Churchill Hospital (Private) in Harrow, Middlesex where it was determined after various tests including a MRI Scan that he had a significant (right) shoulder injury (and not epilepsy) which incurred as a consequence of the road accident in Dubai earlier that year. Because of the initial diagnosis of epilepsy, DS had to surrender his driving licence for a year.
• October 2013 – DS was referred to the company’s Occupational Health Doctor by his employer who stated that he was fine to continue work and proceed with international business travel to Dubai. Some recommendations (reasonable adjustments) were also given by them which included the company providing private taxi/transport to/from the office which was ignored by his line manager. So DS travelled to/from office by bus, the vagaries of which could have posed further risk to his shoulder injury. There was no further international business travel to Dubai until March 2013 as the company insurer refused to cover DS because of the diagnosis of epilepsy and even though this was later ruled out, they wouldn't change their minds.
• January 2013 - DS then underwent a significant shoulder operation to repair the damage. After the operation, DS was required to wear a bolster on his right arm at all times for a period of 8 weeks as part of his recovery. After a recuperation of around 2 weeks after the operation, DS worked from home on a part-time basis.
• March 2013 – The shoulder operation was deemed a great success and DS returned to work and commenced international business travel to Dubai that same month. DS was reassessed by Occupational Health (Telephone Interview) and also had a Return to Work Interview with his Line Manager & HR.
• Breach – After the taxi accident in February 2012, the company failed to do the following 1) No Referral to the Company Doctor (Occupational Health) or to a Private Hospital in the UK in February 2012. If DS was referred to a competent medical specialist, the shoulder injury would have been detected, thus preventing his collapse later that year and the consequences that it entailed. It is a fundamental responsibility of any employer to provide that duty of care to all employees and surely it must also be procedure as per their internal processes. That wasn’t done. It’s also about reasonable foresight because at what point in the timeline of the incident in February 2012 did the company make a decision that a reasonable company would have made? 2) No Return to Work Interview conducted by Line Manager when DS returned to the UK 3) No internal Accident Report completed by management to my knowledge. As the taxi accident occurred enroute to work on international business travel, this surely must be done.
• Note that medical care in Dubai isn’t world renowned and the quality of medical care does differ. So the company should have referred DS to a medical professional in the UK as a precaution. They didn't do that. Therefore, they have breached a Duty of Care to DS whilst he was travelling on company business and subsequently he was involved in an accident and still no proper support was offered in the UK. Surely a FTSE100 company should have an internal procedure / process for the Health & Safety and well-being of its staff? So why wasn't this implemented in February 2012? And the company should insist on a checkup by a UK Medical Specialist as a precaution regardless of whether there are injuries or not.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Under common law and statute an employer has a duty to take reasonable care for the health and safety of their employees, meaning providing protection against anything that may cause harm and effectively controlling any risks to injury or health that could arise in the workplace.


Unfortunately I do not see much liability on their part in these circumstances, at least not to an extent that would justify making a claim against the employer. The injury did not occur in the workplace and the employer cannot be held liable for it occurring in the first place, although I appreciate this is not what you are complaining about.


There is no legal duty on the employer to refer an employee to OH or a private doctor. That is an option but not a legal duty. The accident may have occurred whilst he was on company business but it had no links to his employment or the activities controlled by the employer. An employer could decide to refer to OH if there is a specific policy that says this must happen but in the absence of such, they are not obliged to make a reference to OH or to a private hospital.


Similarly, there is no legal duty to conduct a return to work interview. The employer has the right to choose whether such an interview is necessary or not but they are not legally required to hold them.


An accident report would not be required in these circumstances. The accident did not occur in the workplace and is not attributable to the employer.


Whilst he may have been in a taxi whilst on company duties, this is not a work-related accident and as such the employer will have limited responsibility and their liability and duties would certainly not be as stringent as if it had occurred on their premises or whilst undertaking specific work-related duties.


There is certainly no duty to refer to a UK specialist ‘as a precaution’ – they can rely on the local medical investigation as it is not the employer’s job to make a decision on whether one country’s medical care is worse than another’s – he was seen by a medical professional and that is sufficient.


Finally, in terms of policy - if an employer employs five or more people, it must have a written statement setting out its general health and safety policy with respect to its employees and organisation (a health and safety policy statement), and the arrangements for carrying out the policy. An employer also has a duty to bring the written statement to the attention of all its employees. However, failure to do so would not allow the employee to claim compensation, rather the employer could be fined by the Health & Safety Executive.


Thanks for the response Ben. It's a shame my father doesn't have a case here but I understand the reasons so thank you for the response. He does have a claim against the party that caused the accident that is currently proceeding.

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