Employment following car accident.

[nicolee2931]

Hi all just wanted a bit of advice really regarding my hubby, in March this year myself and husband were involved in a serious road traffic collision, we were hit from the side and the rear, although our vehicle was not written off it was damaged quite substantially.

 

I was injured and suffered whiplash and a shoulder injury due to the seat belt and returned to work quite quickly, however the story is quite different with my husband, he suffered whiplash, a shoulder injury, a lower back injury and a very nasty bang to the head. The whiplash and shoulder injury is getting better and the head injury cleared up within 2-3 weeks, however the lower back injury has made no improvement in 15 weeks and as a result he had an MRI scan 3 weeks ago which shows a ruptured disc on the left side at level L4-L5 which in turn is pressing on the L4 root nerve causing my hubby severe pain in his left buttock, front left thigh, left knee & and foot including toes.

 

Now the problem, he attended a welfare meeting with his employer in May and explained the facts as known to be true at the time, which were his neck was improving along with his shoulder, but there was no improvement with his back and was being treated acordingly with painkillers, he had not had the MRI as this point so he didn't really know the extent of his back injury. The welfare meeting was brought to a close and nothing else said until earlier this week when his employer got back in touch with him regarding his absence, basicly they were wanting to know his current condition and when he is likely to return to work, he basicly e-mailed them and said there was no change in the back injury, told them he had an MRI and explained what the MRI scan had picked up. Now his worry is the tone of the correspondence which has been sent to him which can only be described as a more firm and direct approach to the situation.

 

He is now worried he may end up losing his job or may not be able to return to his job through something which is not his fault as his job is physically demanding.

 

Now I have to explain we have approached a solicitor with regards to claiming for personal injury and loss of earnings as the accident was totally non fault 100% admission from the insurers of both third parties. Now the problem, as said before my husband is worried sick about losing the job he loves though either the sack or incapability, who would be liable for his loss of job? My husband and I believe blame lies with the 3rd party insurer, however our solicitor believes it would be his employer as the solicitor believes it would be unreasonable to lay him off without first giving him chance to recover, however 15 weeks on and no change in the injury and a damning MRI scan showing the injury. What would a reasonable time on recovery be? Our solicitor believes if he does get the sack then he thinks a claim should be brought against my hubbys employer at an ET.

 

We both think my husbands employer are the neutral party in this matter other than being a bit heavy handed of recent and applying a bit of pressure, but it seems the solicitor is looking for the back door in approaching the third party insurer for possible loss of employment and future employability and new training costs.

 

My husband has worked solidly for 19 years in his line of work since leaving school, college & university and has a job which is both technical and as said before very physical, he is so depressed over the whole situation as 15 weeks out of work and counting is doing him no good as his fitness is begining to suffer. Any help in this is welcome.

[Sidewinder]

Hi there and I am really sorry to hear of your husband's predicament. It must really be adding to the stress of what was already a worrying situation.

 

First of all, I have to concede that that your solicitor should know much more than I do, but I wonder on what grounds he believes that a claim could be brought against the employer. I know that you don't want to hear it, but as far as I am aware, the employer would be within his rights to dismiss your husband, providing that this is managed through correct procedure. If your husband is unable to fulfil his duties, and there is no clear prognosis on when he may be able to, then this would potentially be a fair reason for dismissal. The employer must act 'reasonably' however, and discuss details of the sickness, undertsnad what steps are being taken to correct the ailment (seeking permission to obtain information from the doctor if necessary), investigating any alternative work or working hours which may enable your husband to return to work etc. Once all avenues have been explored, then dismissal can unfortunately follow as your husband is unable to fulfil his contract. Perhaps the solicitor is looking towards a breakdown in this procedure and has one eye on Unfair Dismissal.

 

The nature of your husband's injuries and his ability or otherwise to work to his full capacity are most certainly a matter for the insurer of the third party involved in the accident, and if medical advice indicates that there will be a long-term restriction on his ability to work then this will form a large part of the compensation, as would the matter of him losing his job if that were to happen.

 

Sorry that I can't offer anything more constructive, but I sincerely hope that he improves and that his employer is compassionate for as long as this may take.

[scousegeezer]

Nicolee,

Does your husbands employer have critical illness insurance to cover salary of staff on long-term illness/injury. If so the insurers could pay your husbands salary whilst he is off work which would leave the employer free of his salary to engage an agency worker. Until such time as your husband is able to return to work. I say this as the ruptured disc will jot go away, it will require surgery to correct. I have had two lots of surgery for similar injuries. It does work and very well ( as long as he lokks after himself afterwards). The insurers would then recover their losses from the third party insurers. Has your husbands specialist disussed surgery, how long the waiting list would be etc. I agree with sidewinder, the solicitor cannot just determine to go after the employer, unless they do not follow the correct procedure for capability etc. Have a word with your hubby's employer to see if they do have the critical illness cover.

 

Best wishes - Scousegeezer.

[honeybee13]

Scousegeezer, I'm sorry to argue with you, but I understood that Critical Illness cover was normally for terminal illnesses or ones from which the staff member was unlikely to recover.

 

Would a disablility or sickness policy or cover be the one to look at, possibly?

 

HB

[nicolee2931]

Taking all this extra info onboard, I do fear my husbands employer will eventually terminate his employment as his GP has said to him do not expect to return to work for at least another 3-4 months but said his general feeling based on what he sees in the MRI report his injuries will almost certainly require the help of a neurosurgeon to fuse the two vertebrae together as the disc has been completely crushed which could quite possibly extend his recovery to 12+ months and even then could leave him unable to do his job as some lasting disability could remain. My husband and I do believe it is the third party insurer who will ulimately be responsible should he lose his job and have the feeling our solicitor is trying to take the advantage of his employer making a mistake somewhere down the line as either our solicitor ends up doing less work or opens the door for a colleague of our solicitor to step in and start an unfair dismissal case in effect giving them the opportunity to generate extra revenue.

 

I have not checked with my husbands employer to see if they have any insurance policy in place to pay him while they recruit a temp while he is absent, to be honst I haven't given it much thought that such a policy would eixst as the RTC was nothing to do with his employer but I will give it a go monday.

 

Many thanks all and I will keep you updated whatever happens.

[Sidewinder]

Please do let us know and if you need any help in the meantime, just shout.

 

It may be an option, if the employer knows that there is a good chance of recovery eventually, even if it does take 12 months, that a fixed term replacement could be taken on in the meantime. That might be a route for negotiation, and a low cost solution for the employer. Naturally it would depend on the natiure of your husband's job and the availability of cover, but with good service and a good employer it is not an insurmountable problem.

[Bigredbus]

Hi,

 

If I may, I am of the view that if the employer intends to dismiss your husband on grounds of ill health, they will have to go through strict and lengthy procedures, hence your solicitor stating that if they dismissed now, your husband would have good grounds to bring a claim to an employment tribunal.

[nicolee2931]

Hi,

 

If I may, I am of the view that if the employer intends to dismiss your husband on grounds of ill health, they will have to go through strict and lengthy procedures, hence your solicitor stating that if they dismissed now, your husband would have good grounds to bring a claim to an employment tribunal.

 

The solicitor did say the process in order to dismiss an employee on the grounds of incapability is quite complex and has to be done in a very specific way, could you please explain what that process is and what time timescales would be deemed reasonable considering my husband has already been absent for 15 weeks with the dread of another 12-16 weeks at least, however if its decided surgery is the only option to repair the injury the doctor said he is looking at at least 12 months because the physical nature of his role with the posibility of some disability remaining, I and he is sure his employer will not wait 12 months for him to make an uncertain recovery.

 

Many thanks all.

[scousegeezer]

Honeybee,

Critical illness is for any serious illness, which means a staff member would be off work for quite a length of time. Definition - critical as in serious, decisive.

Cheers - SG

[Bigredbus]

The solicitor did say the process in order to dismiss an employee on the grounds of incapability is quite complex and has to be done in a very specific way, could you please explain what that process is and what time timescales would be deemed reasonable considering my husband has already been absent for 15 weeks with the dread of another 12-16 weeks at least, however if its decided surgery is the only option to repair the injury the doctor said he is looking at at least 12 months because the physical nature of his role with the posibility of some disability remaining, I and he is sure his employer will not wait 12 months for him to make an uncertain recovery.

 

Many thanks all.

 

Dismissal on grounds of ill-health... (Extract from HRManager website)

 

This section gives guidance to employers faced with an employee whose illness means they are unable to carry out their work either through long term or intermittent illness.

 

Employment Tribunals expect employers to act with sympathy and consideration before deciding to dismiss employees whose health no longer makes it possible for them to carry out their work to the required standard. Our overall advice in the case of long-term illness to be fair and sympathetic but not to duck the issue. The following procedures should be followed to the letter in an unhurried manner. Primarily with a view to retaining the employee but if that is not possible to finding a satisfactory solution.

 

Employer's Actions

The guiding principal in any action to dismiss on grounds of ill health should be whether the actions taken at each stage would be those of a reasonable employer.

 

1. What contractual provisions exist for sick pay? Have those provisions been applied consistently to other employees? If the sick pay provisions are inadequate modify them for all staff, but once they have been set down apply them rigorously. One scenario of particular difficulty is when an employee has persistent intermittent periods of illness. Employers should make sure their sick pay arrangements take into account cumulative illness of this sort.

 

2. Review the contractual provisions as regards medical examinations. Does the contract give the employer the right to request a medical examination take place?

 

3. Ensure that the sick employee has a contact within the organisation (normally the line manager). Make sure the employee is informed about developments at work. There should be regular telephone contact and if absence is longer than one month home visits should take place with the employee's agreement. Make clear the purpose of such contact is purely a welfare matter.

 

4. If absence lasts longer than one month ask the employee to give the company medical advisor permission to approach the employee's medical advisor for a medical report. Note the employer should have no access to the report or its contents. The employee needs to give specific permission for the employer to receive a professional opinion regarding the employee's suitability to return to work only.

 

5. Request regular medical reports every three months.

 

6. After six months (or earlier if appropriate) request the company medical advisor to give an opinion upon transferring the employee to alternative employment/ ill health retirement.

 

7. If the employee is prepared to return to work consider a return on limited hours/ responsibilities. Act on the advice of the company medical advisor.

 

8. At the point of long term or intermittent absence where the absence is clearly damaging the working of the organisation, consider giving the employee a caution that it may be necessary to consider dismissal. Consider this particularly in the light of medical opinion regarding long term prospects.

 

9. Once sufficient time has passed to judge the employee's reaction to the warning, the employer needs to consider in their context and the light of medical advice is it now reasonable for them to dismiss the employee? The key question is could a reasonable employer be expected to wait any longer for the employee's health attendance record to improve, bearing in mind the interests of the organisation, the position which the employee holds and the need to be fair to him or her?

 

10. At this stage we recommend employers take experienced professional advice to test their reasoning is reasonable in the circumstances. The question to ask is have we followed all the reasonable steps and come to a fair conclusion that it is more likely that the employee will not be able to fulfil their contract of employment.

 

11. If dismissal is to be considered follow the organisation's disciplinary code (modified in the light of the employee's personal needs).

 

12. Give the employee/ representative a chance for a hearing, permit an appeal if the decision is taken to dismiss.

[honeybee13]

Honeybee,

Critical illness is for any serious illness, which means a staff member would be off work for quite a length of time. Definition - critical as in serious, decisive.

Cheers - SG

 

Hi SG. I bow to your knowledge when it comes to public sector schemes, but I worked in the insurance/assurance industry for many years and in the private sector, critical illness paid a lump sum last time I dealt with it, and only for illnesses that were terminal, very long term or likely to result in adaptations having to be made to someone's home, for example.

 

I will have a read on the interweb and post again.

 

My best, HB

[honeybee13]

Hello again nicolee and scousegeezer.

 

I trawled the internet as promised, and the conditions mentioned for a critical illness policy to pay out are things like heart attack, cancer, paralysis, etc. Not a temporary condition as this seems to be at the moment.

 

There's not much I can post on the forum that isn't commercial, but there's a list of conditions that would normally be covered by a critical illness policy on Wikipedia.

 

If the employer has the appropriate policy in place, then this could be covered under Permanent Disability insurance or something like that.

 

I don't know if it applies here, hope it helps a bit nicolee.

 

HB x

[nicolee2931]

For the moment my husbands loss of earnings is being paid for by the third party insurer, however my only worry is should he lose his job then he will have no earnings which could be deemed as lost.

 

The only thing I could think of doing if he did loose his job is to get our solicitor to lean on the third party insurer for loss of income through loss of employment.

 

But I will check with my husbands employer tomorrow to see if there is any insurance policy in place that would cover his losses, while enabling his employer to take on a temp until we know more about my hubbys injuries.

[honeybee13]

Hello again. If your husband lost his job [and I hope he doesn't], then that would be loss of earnings as I understand it.

 

Depending on what answers you get on this forum, you may feel it's worth posting something on the Insurance forum later on.

 

HB x

[nicolee2931]

My husband contacted his employer today and they confirmed no such insurance exists, they had already looked into this themselves for him. So we are just left with our solicitor claiming his loss of earnings for him.

[nicolee2931]

Right an update, my husband got a phone call from his work on Friday followed by an e-mail. Basicly he was told he had to attend a meeting today along with the other guys in his department.

 

The meeting was to tell my husband and the guys who work with him that their jobs are at risk due to redundancy, his employer need to reduce the department in which my husband works by 1 man.

 

To say the least my husband was a bit shocked by this sudden news. My husband is of the opinion this redundancy situation has come about basicly so they can be rid of him.

 

Can his employer include him in the selection process if he is on the sick as he feels unfairly disadvantaged by being on the sick, and has automatically assumed he will be the one to be made redundant.

 

Anyone got any ideas or thoughts on this new twist to his situation.

[Sidewinder]

Right an update, my husband got a phone call from his work on Friday followed by an e-mail. Basicly he was told he had to attend a meeting today along with the other guys in his department.

 

The meeting was to tell my husband and the guys who work with him that their jobs are at risk due to redundancy, his employer need to reduce the department in which my husband works by 1 man.

 

To say the least my husband was a bit shocked by this sudden news. My husband is of the opinion this redundancy situation has come about basicly so they can be rid of him.

 

Can his employer include him in the selection process if he is on the sick as he feels unfairly disadvantaged by being on the sick, and has automatically assumed he will be the one to be made redundant.

 

Anyone got any ideas or thoughts on this new twist to his situation.

 

Sorry to hear about this new development. Firstly, your husband is entitled to exactly the same treatment as everybody else. He is entitled to be consulted in the same way, in a manner which he is comfortable with (telephone, meetings, email etc) and can ask as many questions as he wants, including direct ones which may be uncomfortable for the employer to answer. He has to be put into a pool of 'at risk' staff and no redundancy can be announced until consultations are concluded.

 

On the downside, your husband is not entitled to any special treatment due to his condition, and unfortunately the employer can use sickness records as a part of a scoring system to make selection. The selection process, though, does have to be transparent, so that should not be the sole criteria used - he is entitled to ask and be given details of scoring criteria.

 

Whether your husband is right or wrong about being put at risk of redundancy, one can only speculate, but I know that I would probably feel the same if I were in his position. Would it not be cheaper though, if they wanted to get rid of him, to manage him out through capability, rather than having to go through a redundancy process? How long has he worked for this particular employer?

[nicolee2931]

He has worked there just over a year, and his employer is using a matrix scoring system to calculate a score for each of those in the selection pool.

 

To be honest he was subject to a similar scoring system almost 3 years ago and it was found at an ET his previous employer had fudged the matrix scores to make him redundant so he has very little faith in this method of scoring and his fears are this time they will fudge the scores again to take advantage of his present situation and make him redundant.

 

He could quite easily prove yet again an unfairness towards him this time around if he were to be made redundant, as two of the guys have been there less than 6 months this is one of the selection criteria, and also my husband has vast experience in his job where as others do not this is also one of the selection criteria along with sickness and punctuality, so based on that he will score quite well except for his current period of absence which is quite a lengthy period and still ongoing.

 

I have been looking around on the net and there are some indicators that employers should be careful when making sick employees redundant as it could leave them open to an ET claim.

 

Thanks BTW for getting back to me..

[Sidewinder]

I have been looking around on the net and there are some indicators that employers should be careful when making sick employees redundant as it could leave them open to an ET claim.

[/Quote]

 

Absolutely! It is a minefield through which the employer will have to tread very carefully, so everything needs to be documented at every stage of the procedure, and with ongoing consultation, rather than just a 'that's the score and unfortunately you are out' attitude. Of course the position would be even more precarious had your husband been able to return in some capacity as there would be a recognised disability to deal with, but the uncertain prognosis makes this somewhat difficult.

 

The matter is of course relevant to the ongoing legal case, and no doubt the solicitor will have a view also.

 

I hope everything turns out better than you think it will.