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Posted By Kinnikin
Scenario:
Person suffers an injury as the result of a workplace accident and has to have time off work.
Inorder to stop losing money in the wage packet as the employer only pays the minimum SSP the injured person declares that the time off work is a 'holiday' (and therefore no loss in money but a days holiday is used up). This results in the severity of the accident being under reported and as the time off is a 'Holiday' and not time recovering this may lead to accidents not being reported to RIDDOR.
My questions are:
Is it right that people who are injured at work stand to lose money if they have time off and so come into work before they should?
Is it right that they have to use up a holiday if they cannot return to work earlier?
Are the employers liable for the non reporting of the injury (as the time off work is a 'holiday' and not off sick even though that is the injured persons declaration)?
Is this legal?
What is the bench mark with other orgaisations? SSP only or full salary for a while etc etc?
I look forward to all your input and advice.
Kinnikin.
Oh yes and Merry Christmas everyone!
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Posted By fats van den raad
I'm not that much up to scratch on SSP and all those kind of issues to comment about that, although I can see your point for being at a financial loss due to a works accident.
What I can tell you though that it doesn't matter whether the person takes the time off as holidays as far as RIDDOR is concerned. A judgement has to be made whether the injured person would have been available for work.
This same situation crops up when, say a person has an accident on a Wednesday, is off work the Thursday and Friday as a result, but back at work the Monday. I guess that most companies would say that this is not RIDDOR reportable as the person was not off for more that three days seeing as Monday is the third working day. The question that has to be asked though is "was the person available for work on the Saturday" If the answer is no, then strictly speaking this makes it reportable.
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Posted By Kinnikin
Fats,
I agree with you and understand that holidays, bank holidays and weekends are included when considering the severity of injury and reporting etc.
However, this situation is when the injured employee volunteers the reason that the time off is a holiday (to save money) and not as a result of the injury.
This leads to the employer being satisfied with the explanation and not reporting the accident to RIDDOR.
Personally I would suggest this needs to be reported regardless. But this situation has set my mind to thinking that this practice may go on else where and that accidents (the severity of) go under reported.
Also, is the employer still liable to a possible civil claim, should the injured person change his mind about the severity of the injury and although the time off work was originally a 'holiday' the injury is so severe that a compensation claim has been made. My worry is that the employer may not have devoted as much resources to the accident investigation and documentation than they may have done should the severity of the incident been known at the time.
K
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Posted By Brian John Abbs
Kinnikin
Some thoughts;
How long was your colleague off for?
One of the limitations on SSP is that it is not normally paid for the first three days.
As Fats says, if your colleague was off for three days the incident is reportable, wheteher or not they took leave instead of sick.
1. It is not right that an employee should suffer loss of money due to a work related accident. The employer has (probably) failed their duty of care to provide a safe workplace, and has a legal/moral responsibility to pay the employees wages.
2. It is not right that an employee uses up leave if they cannot return to work as soon as the company wishes. If someone is unfit to work, through a work related injury they should receive their standard ill health cover from the company.
3/4 If the injury is over 3days it is reportable and the company is commiting an offence (subject to a £5000 fine)if it fails to notify within 10 days.
5. In this situation the policy is for our guys/girls to go onto company sick pay until that was used up (dependent on length of service) and then the'yd go onto SSP. In practice, I know that if it is due to a work related accident we keep them on company pay.
Hope this helps.
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Posted By Nigel Singleton BSc
Guidance note 58 from RIDDOR states:
When calculating ‘more than three consecutive days’ the day of the accident should not be counted, only the period after it. Any days the injured person would not normally have been expected to work, such as weekends, rest days or holidays, must be included.
Regardless of whether the employee took a voluntary holiday day, this should be counted in the 3 day rule.
Legally there is no obligation to pay anything other than SSP for a work accident, however in a civil claim, you will end up paying loss of wages should you not win the case.
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Posted By John Murgatroyd
Statutory Sick Pay (SSP)
Statutory sick pay entitlement (SSP) starts if a legitimate illness means an employee has been absent for at least 4 days.
If an employee is under 16 or over 65, or if an employee earns (in an average week) less than the National Insurance lower earnings limit of £79, they are not entitled to SSP. In these cases, the Inland Revenue recommend that the employee is given form SSP1 and contacts their local Jobcentre Plus or social security office to claim incapacity benefit.
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Posted By Shane Johnston
If the injured party does not report the accident, and takes a "holiday" ... then this would not be reported as the company knew nothing about it !! If on the other hand your are aware of the accident/injury, and the individual does not report it and takes a "holiday" then the injured party is breaching his legal responsibilities by not co-operating with his employer and reporting the accident.
I would suggest pointing out to employees that if they have an accident then the company will take action against any individual who fails to report it. Make it clear that it is in their interest, how else can accidents be investigated and prevented from happening again. Also point out that if they fail to report the accident, future civil claims could be difficult.
We pay injured employees, after all if you didn't they may be forced to take civil action simply to recover their loss.
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Posted By Kinnikin
Shane,
They do report the accident but then proceed to hoodwink the employer as to the severity of the injury and instaed take a holiday (to save from loosing money in the wage packet).
The employer naivley (?) understands the accident has taken place but (wants to) belive the injury is minor as the injured party is on 'holiday' not on the 'sick'.
Then eventually a civil claim comes in wanting compensation for such an injury.
I think this is a preventable situation and if the employer pays full wages to the injured (allbeit for a period of time and not indefinitely) the injured would not try to misguide the employer, the employer can mange risk being aware of the full story and thus reduce the number of claims (or at least the shock of such claims coming through the door.)
Save pennies now for thousands of pounds spent later (current situation). Or spend a few pounds now and save many pounds later.
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Posted By David Sinclair
Kinnikin,
Interesting one this. I think the RIDDOR part of your question has been answered in full, I believe the accident would be reportable on the 4th day of absence, irrespective of holidays.
With regard to payments, an employee can bring a claim in tort if he has suffered a loss due to his employer's negligence (subject to the usual caveats). Therefore, in this case the employee may be able to sue for the loss of his holidays, arguing that he knew the employer's policy was only to pay SSP and so he was forced to use his holidays (as he could not afford the loss of earnings).
A point to remember is that the employee has 3 years in which to bring the claim. Try defending it after that length of time.
Regards.
David
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Posted By J Knight
Not sure about the technicalities in the holiday bit but my ex-employer would not count sickness time as holiday to the extent that if an employee became ill while on holiday they were required to report this to HR and have their sickness/holiday records amended. This may have been to avoid the kind of situation discussed here,
John
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