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Posted By PaulA
Hello all..
An individual was employed by our company to weld/fabricate. After two months he was dismissed after several cases of breaching company policies. On being dismissed his final statement to the MD was to inform him that he had injured himself whilst manual handling and that he was contacting all 'outside agencies' ie HSE,ACAS etc and his solicitor....
We do have a manual handling policy and we do carry out manual handling training and have lifting equipment etc..
On his application form he stated he had no previous medical conditions or injuries etc... It subsequently comes to light that he had previously injured his back with his previous employer..
My question is .. can anybody tell me the reference whereby a prospective employee MUST inform an employer about a previous injury that my affect there ability to carry out the job? Does this come under the Employment Act 2002?
Please dont allow me to start a lengthy debate on DDA etc... this is not an issue.
Kind regards PaulA
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Posted By Mel S
PaulA,
The first place I would look at is the wording on the pre-employment questionaire - Did you you / the company make it clear that you had to put down existing health problems down?
Also did the guy put any incident / accident in the accident book regarding back pain / manual handling issues? It might be worth while contacting your insurer so they can help you with the evidence you may need to fight the claim if he puts one in.
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Posted By cara
He's obviously trying to pull a fast one!
You seem to have done everything that you should i.e. training, policy, equipment etc. I think (hope) the HSE etc will see through him!
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Posted By Robert Tailby
Non disclosure of a previous injury if your pre-employment form specifically asks for it will seriously undermine his ability to make a claim, as will failure to report an injury at the time. This sort of thing happens all the time - I would not lose too much sleep over it! Ask your insurance company, Broker or Solicitor for some advice about your specific case if you are still concerned.
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Posted By Jean Chamberlain
Hi Paula
The Employment Act 2002 stipulates honesty. However, This probably relates more to the Management Regs and risk assessment in terms of fitness to undertake the task. It also relates to ensuring your duty of care that the role will not result in harm to the individual.
1 Do you have documented evidence that he had received training (signture, evaulation of understanding)
2 Was he aware of the equipment, did he understand how to use it. Had he been supervised using the equipment? Was it readily available for him to access.
3 Did his induction cover incident reporting?
4 Check very carefully the wording on the pre employment health questionnaire. Does it say that failure to reveal a previous...... may result in the contract being terminated. (Probably the last step)
5 If his GP had given him the all clear, then he may not have deemed it important. If he makes a claim you will receive information relating to his injuries with his consent. Also his previous injury may have no bearing on this injury.
6 How likely is it that this injury actually took place? Did he tell anyone? Visit his GP, sickness absence.A & E
7 How readily available were the incident report forms?
8 What harm would it do to ask him to complete a form now. What does your policy say?
9 If he's not been complying with company policies, then I would be wanting to know why! This sounds like at least 3 company policies that he has not complied with!
10 I think its only fair to warn you, that I've been in this situation twice, claims and no incident reports having been submitted, and the insurance company paid out on both occasions. It came down to how likely is it that the incident actually took place.
Kind regards
Jean
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Posted By Robert Tailby
Jean sets things out very clearly. I did not mean to imply by my earlier comment that the points she makes are not important (reading back, it might seem I was being dismissive, which I did not mean to be). Unfortunately some insurance companies do sometimes pay out claims instead of fighting them as this can work out cheaper for the insurer in the short term than funding the necessary defence costs. However, in the long run this can become a very costly strategy as it may open the floodgates to additional claims. My advice would be to try and stop your insurer giving in too easily. You can help do this by having your file of evidence, proving the points as itemised by Jean, already prepared and waiting when the claims investigator/loss adjuster comes to call.
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Posted By John Murgatroyd
And many insurance companies pay-out because they realise that the injury WAS done at the workplace, and a court case would result not only in a larger award than an out-of-court settlement but may lead to other claims based on the result.
Just because his back was injured at his other employers premises does not mean that he didn't injure himself at yours, and it certainly doesn't mean that you can assume he's a liar.
It may well be that his previous injury is not related to his present one.
I know of one case settled out-of-court that would have cost the insurers another 30K if it had gone to court....but the guys wife wanted it over with (it had dragged-out for over 3 years.....and was a trip injury) (and was due to the stupity of a H&S consultancy in putting the phrase "no wires, cables or hoses to be used in the workplace".....very nice, but that meant no work could be done !)
Don't set yourself up in an adversarial role....it'll save the stress levels going too high....just provide the info to HR and the insurers....
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