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Posted By mark linton
An employee has an accident and goes off sick. Claim comes in before the individual comes back to work. The individual comes back to work and we want to speak to them regarding the circumstances of the accident but they refuse on the grounds that their solicitor as advised them not to comment as this could harm their claim.
Is this in conflict with the requirement on the individual to cooperate with their employer? Does an employee have the right to refuse to cooperate in an investigation under these circumstances?
Thanks in advance
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Posted By A Campbell
Sect 7(b) of Part 1 HASAW 1974
general duties of employees at work
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Posted By Jim Tassell (2)
Let's assume various things:
1 - you cannot properly close off your investigations until you have the full story from the injured person.
2 - Your contracts of employment are good enough that they have some sort of "duty to cooperate on safety matters" clause.
In this case you could well argue that the individual is in breach of his personal duties but where's that going to get you? I don't see the HSE prosecuting them. But were they to persist and frustrate your investigation there could be substantial implications for the processing of their claim.
Practically, you need to involve your HR and your insurer and think through how best to play the case right to conclusion rather than do a knee-jerk right now(tempting as that may be!).
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Posted By Richard Altoft
HASWA 7b only applies to the employees duty to cooperate with the employer so the employer can fulfil statutory provisions. The claim is made under civil law not under statute so claimant has no duty to assist employer to investigate the claim beyond providing enough information for a RIDDOR report if appropriate.
Clearly employee does not trust employer or has been advised not to comment. That is his right.
R
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Posted By joolz040770
My first of many questions would be: When you (i.e. the employer) completed the accident report form was the employee involved?
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Posted By SteveD-M
I would advise an employee in the same way..
You should already have conducted the accident investigation or at least have the accident report.
You may by the sounds of things be in the territory of just trying to mitigate this one rather than defend it...but as always the devil is in the detail and I don't think you have given us enough to go on..
Just be careful trying to force that hand...I know what I would throw at you if I was on the other side...bullying uncaring causing more stress and anguish constructive dismissal...etc..
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Posted By mark linton
The investigation was stalled as the employee involved was the only witness and not wanting to be seen as 'haressing' the employee during their absence (which is directly related to their accident - I don't think I made this clear in the original post), they weren't chased up for comment. We have an educated guess of what happened but without speaking to the individual it is still only a guess which is not enough to sign off the investigation as complete. Which leaves us with this current situation of needing some input from an employee who refuses to cooperate on the grounds of their claim and advice they have received from there solicitor.
I do not have an axe to grind, however it came across in the original post but I do want to know how the accident occurred and to gauge whether others felt there was a conflict - that is between the requirement to cooperate with an employer to carry out a statutory duty (accident investigation would be an impied statutory duty if not explicit) and advice to the contrary from a solicitor on a civil matter?
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Posted By John J
Surely the injured party will be required to fill out an accident form outlining the events and allow you to put remedial actions in place to prevent re-occurrence.
Our accident book places a duty on the employee to inform his/her employer of the accident as soon as is reasonably practicable by filling out the fist section of the accident book.
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Posted By DJ
Mark,
Has all the information you need not been included in the letter before action (the claim)?
If not, why not put your questions to the claimant's solicitor, citing your reasons for asking them. Alternatively, seek to interview the claimant with his/her solicitor present.
Regards.
DJ
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Posted By Peter F
Why don't you conclude your investigation with the statement 'we could not complete the investigation due to the fact that the employee refused to co-operate'.
Review the risk assessment if there is one and ensure that you have done all you can. If the employee does not offer any assistance and the accident happens again, then use the fact that the employee would not share relevant information that could have prevented further injury to himself or others. Section 7 HSWA.
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Posted By Phil Grace
Mark,
Careful here - I would advise against approaching your employee's solicitor. If a formal letter of claim has been made that should have been passed immediately to your EL insurer. They will take over the handling of the claim. You should then step back, leave it to them and not try to intervene.
Your insurer will ask for anything and everything that you have, documents, drawings, photos etc etc. It is unlikely that the letter of claim will include full details - they never do! But if there is anything that is needed from the claimant then your insurer will get it....
Regards
Phil
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Posted By DJ
Phil,
There should be no problem in approaching the claimant's solicitor provided the insurer through your own solicitor or with the permission of your insurer.
The main aim is to obtain factual information, which as I said should be in the letter before action, or in the claim itself.
I do agree that you would not want to upset your insurer, who may seek to avoid the claim.
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