Repetitive Strain Injuries

Concerned about claiming against your employer?

Think you might have a claim for an accident at work but concerned about claiming against your current employer? Below, we outline your rights and the laws currently in place surrounding this area.

“Any employer would be advised to tread very carefully around the dismissal of an employee who was seeking compensation for an injury sustained at work,” says Justine Watkinson, Senior Partner in the Employment Team at law firm Hillyer McKeown, sister company of Mercury Legal and specialists in Employment and Commercial Law.

“Not only might the employer fall foul of the unfair dismissal legislation but the employee may also have the right to bring a claim for discrimination under the Equality Act 2010 if he or she can demonstrate that any dismissal was because of or arising out of a protected characteristic.

“Discrimination claims are expensive for employers to defend in legal fees, management time and can also attract awards, which make them attractive to avoid. The average award last year for a disability related unfair dismissal was £16,320.”

Qualifying Service

If you have been employed by a company for 2 years or more, you have something called qualifying service. This means that you have a statutory right not to be unfairly dismissed. It is however important to note that there is no requirement for qualifying service where the dismissal is for “certain grounds” or where the dismissal is because of, or arising out of a protected characteristic under the Equality Act 2010.

There are 9 protected characteristics under the Equality Act 2010 however the one that is most relevant here relates to disability. Where an employee is characterised as disabled under the Equality Act, he or she may not need the 2 years qualifying service should they be dismissed by their employer to bring an unfair dismissal claim. The definition of disability is a legal one and may be different from how the average person may define it; as such we would always recommend you seek advice on this point if you do have less than the 2 years qualifying service.

An employee who is eligible for the above and who is dismissed will have a successful claim for unfair dismissal unless the employer can prove that the principal reason for the dismissal was one of the following:

• The employee’s capability or qualifications for performing work of the kind which that employee was employed to do;
• The employee’s conduct;
• That the employee was redundant;
• That the employee could not continue to work in the position which they held without contravention of a duty or restriction imposed by or under an enactment; or
• Was some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

Reasonableness

Once the employer has established a potentially fair reason for dismissal, the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason. The employer must show that they carefully investigated any concerns that they had with the employee and that their decision to dismiss was within a band or reasonable responses.

Remedies

An employee who has been unfairly dismissed must generally bring a complaint before an employment tribunal within three months of the dismissal.

A tribunal can order:

• Reinstatement or Re-engagement These, which generally involve payment of salary and benefits between dismissal and the date of re-employment, are rarely made. If a reinstatement order or a re-engagement order is not complied with, the tribunal will award an additional award.
• An award of compensation that comprises of two elements:
– A basic award This is based on the employee’s age, weekly pay (subject to the statutory maximum and length of service. The tribunal may reduce the amount of the basic award in certain circumstances (for example, where it considers that the employee’s conduct renders a reduction in the basic award to be just and equitable).
– A compensatory award of such amount as the tribunal considers just and equitable, subject to the current statutory maximum capped at 12 months gross salary or of £76,574 (until April 2015) the compensatory award is to compensate for financial loss sustained by the employee in consequence of the dismissal. Heads of loss include loss of pay and benefits to the date of the hearing and future loss of pay and benefits. To assess future loss, the employment tribunal must make a judgement as to how long it will take the employee to obtain future employment. The employee is under a duty to mitigate their loss by attempting to find suitable alternative employment. Any contributory fault on the part of the employee will reduce the award.

It is important to note that, even if you do not have the aforementioned two years of service to a company, you still have certain rights. To find out more, please contact us via our website here or call us on 0800 028 2060. You can also a call at a time convenient for you by clicking here