We have previously covered ‘what Managers need to know about personal injury claims’; in this Newsletter, we take it a little further by focusing on reducing the number and size of claims. Workplace injuries are costly. Apart from compensation, fines and loss of productivity, they can result in high emotional and physical strain on your employees, and can have severe repercussions for your business. Therefore, you should be investing in keeping your employees safe.
So it would be remiss of us not to point out that the best way to avoid claims is to avoid having accidents at work. Too many employers are resigned to accidents happening because “people lack common sense,” “do not follow our rules”, or “ignore their training”. We do not accept this approach which simply blames the worker. An accident, by definition, is something that happens unintentionally. They can’t be avoided 100 percent of the time simply because some things cannot be foreseen. That doesn’t mean their likelihood can’t be diminished greatly. In fact, in many cases, workplace injuries are the direct result of not following easy safety precautions.
Accident statistics tend to focus on fatalities rather than those who sustain injuries, which may be serious enough that they can no longer physically work, either for a period to time or not at all. These can form large and expensive personal injury claims due, in part, to the predicted loss of future earnings up until the time the employee states they were thinking of retiring, which could be past state retirement age.
When most people think of workplace accidents, they often automatically associate them with high-risk industries, such as construction or manufacturing. The truth is injuries can occur in any place of employment. We will, therefore, initially focus on avoiding accidents by creating a safe working environment.
It is generally cost-effective to prevent accidents at your organisation. There are three things you can do to help make your workplace safer, and hence make your Insurer much happier.
Put in place a Management System
- Plan: work with your employees to identify potential problem areas, and set goals for improvement.
- Train: give your employees the knowledge to identify and take action over potential risks.
- Organise: make employees, including cleaning and contract staff, responsible for specific areas.
- Control: ensure working practices and processes are being carried out properly, and keep records of all cleaning and maintenance work.
- Monitor and review: talk to your employees so they can feedback on how measures are working.
Carry out Regular Risk Assessments
It is important that you identify all workplace hazards and take steps to reduce the risk for your employees. Risk assessments will help you to identify hazards, decide who is at risk and create a plan to eliminate or control them.
By carrying out a risk assessment, you will be meeting your legal requirements, and it will help you make an action plan to reduce the risk of an accident occurring at work.
- Decide who might be harmed and how. Especially think about younger or older people, disabled or vulnerable people who may come into contact with your organisation.
- Consider the risks. Note any potential problems, and do something about them.
- Record your findings, and action plan what further control measures are required.
- Regularly review the risk assessment and action plans to establish progress, and to take into account factors that may have changed, e.g. new working practices.
Know the Law and Apply it
It’s a good idea to read up and be aware of at least: the Health and Safety at Work Act (1974), plus the six pack of Regulations and COSHH, and keep a close eye on the HSE website.
An employer has two main responsibilities when it comes to preventing accidents in the work place:
- taking measures to protect anyone in the workplace from harm (including visitors and customers);
- informing the Health and Safety Executive (HSE), via RIDDOR, in the case of (i) death or specific incidents; (ii) accidents that prevent workers from returning to work for seven continuous days or more; and (iii) non fatal accidents to non-workers, e.g. members of the public, if they result in an injury and the person is taken directly from the scene of the accident to hospital for treatment to that injury;
It is an employer’s duty to conduct risk assessments, offer appropriate health and safety training, conduct emergency planning and provide adequate first aid. If you employ more than five people, you must have a written health and safety policy. By creating and distributing a health and safety policy, you show your employees that you take their health and safety seriously, which will increase their trust in your leadership. A good policy will reduce the risk of accidents, and give you some defence if you can show that it is current and relevant to what you do. Unearthing a ten year old document is unlikely to impress your insurer, or a claimant’s solicitor.
Avoid Accidents in the Workplace
Put safety at the forefront. Follow this list of tips on how to prevent injuries from happening in the first place:
- Always be alert. Care for the well-being of the workforce so that workers are not working when unduly fatigued or stressed, or suffering from injuries or illness.
- Don’t rush people. In many workplaces, time is of the essence. Employees are given deadlines that they must meet, so there is often a sense of urgency when it comes to completing certain tasks. It’s important, however, to give the appropriate amount of time to perform your duties safely. With a ‘get it done quick’ attitude accidents happen often because people take shortcuts.
- Provide safety gear. Many jobs require appropriate PPE to be worn to protect the user from known workplace hazards. The trouble is that many employers do not insist that it be worn at all appropriate times. Your employees must always wear their PPE when it’s required, as using PPE correctly can potentially minimise life changing injuries should an accident occur at work. If your risk assessment indicates that your employees require PPE, you must provide suitable, task-appropriate protective equipment that is a suitable fit for each employee. Provide appropriate training to ensure your employees understand how and when they must wear it, as well as how to check and report any faults in their equipment. Those in charge must always lead by example and never shirk their responsibility to wear their PPE, and to enforce the wearing of PPE. However, you should only use PPE as a last resort, so ensure you implement all other controls measures first.
- Provide clear instructions. Whilst many employees are expert at what they do, you need to ensure that they have been well informed and given appropriate training to make educated and/or dynamic judgments about what is and what is not safe. Paying attention to detail can help you to avoid making mistakes that can lead to injury.
- Organise emergency drills. Workers can tend to take safety drills for granted. Emergency drills are conducted for the purpose of teaching employees what to do in the event of an emergency, but because they are not “the real thing”; the tendency is that people often go through the motions carelessly. However, participation in such drills couldn’t be more important, so if you spice up the drill with, e.g. deliberately blocking certain exit routes, it will shake people out of their complacency, make them think through what options do they have. Overall, they should find the exercise more rewarding and you will find some beneficial learning, especially if you timed how long it took people to find alternative exit routes.
- Keep workspaces clean and clear. A cluttered, unclean work area is more difficult to efficiently manoeuvre in, and workers are more prone to hazards. Make sure employees adhere to something as simple as running computer cables and cords properly, so that they don’t create a tripping hazard. No matter if the work environment is a manufacturing; warehousing or an office cubicle, keeping the area clean, well-maintained with good house-keeping standards significantly decreases the likelihood of accidents.
- Post proper signage. You can help to make your employees aware of hazards by displaying hazard specific warning signs. All employees must understand what each sign means, and what precautions they need to take for specific hazards. Each work area on your premises will have different hazards, so you need to ensure that you select appropriate signs. Employers should post signs reminding employees of proper safety procedures in noticeable places, and in spaces where those specific procedures should be practiced.
- Inspect and maintain all equipment and machinery. Regular maintenance is vital as it helps to ensure that all equipment is in a reliable and in safe working order. A competent person must carry out regular inspections and maintenance on your equipment and machinery in accordance with PUWER. Keep all inspection records. Many claims involving equipment are conceded or lost because of inadequate records.
- Maintain a safe fleet and safe drivers. For employers that provide employees with business vehicles to complete daily tasks, it’s imperative that vehicles are well maintained and serviced on a regular basis. If you have a grey fleet of employee vehicles, then ensure that employees can provide evidence that their vehicles have business insurance, and that they are taxed and regularly serviced. Additional or advanced driver training will help reduce employer’s vicarious liability, as well as your insurance premiums.
Provision of adequate information, training and supervision
All workers have a responsibility for health and safety at work, and must make sure they work safely and do not put them or others at risk. Some of that is common sense, but it is also about the provision of information, training and good supervision.
Information ranges from good induction processes through to regularly informing and updating people about your health and safety rules, safe systems or work, all work procedures and risk assessments. Indeed, the failure to provide adequate written safe systems of work that the employee was then trained in is the personal injury solicitors default position, as many employers struggle to provide this evidence.
Proper training of all employees and Management is especially important when taking on a new/revised job that may present a number of risks. Employees must be appropriately and regularly trained in health and safety measures, and receive adequate training for all their duties. Appropriately trained employees are less likely to have workplace accidents, as they understand how to carry out their duties correctly and safely. By training your employees, you will also fulfil your legal duties and help foster a positive health and safety culture. If you fully record your training, then you will have a good audit trail to impress your insurer, and depress the claimant’s solicitor!
Most solicitors will attribute any accident (especially if they think their client was partially at fault) to a failure of supervision. Train supervisors well in their health and safety responsibilities which should be an integral part of their job, not just an add-on only when they have time.
The purpose of accident and incident investigation, if done well, should lead to the prevention of such events in the future. Organisations must carefully plan how they will investigate accidents, and to make sure that those involved have received adequate training, and are fully aware of the organisation’s policies and procedures. Prompt, thorough investigation reduces the opportunity for collusion.
Reasons to investigate a workplace incident include:
- most importantly, to find out the cause of incidents and to prevent similar incidents in the future;
- to process workers’ personal injury compensation claims;
Although there may be occasions when you are unable to do so, every effort should be made to interview witnesses. In some situations, witnesses may be your primary source of information because you may be called upon to investigate an incident without being able to examine the scene immediately after the event. Because witnesses may be under severe emotional stress, or are afraid to be completely open for fear of recrimination, interviewing witnesses is probably the hardest task facing an investigator.
Witnesses should be kept apart, and interviewed as soon as possible after the incident. If witnesses have an opportunity to discuss the event amongst themselves, individual perceptions may be lost in the normal process of accepting a consensus view where doubt exists about the facts.
Witnesses should be interviewed alone, rather than in a group. You may decide to interview a witness at the scene where it is easier to establish the positions of each person involved, and to obtain a description of the events. On the other hand, it may be preferable to carry out interviews in a quiet office where there will be fewer distractions. The decision may depend in part on the nature of the incident and the mental state of the witnesses.
If you have not investigated thoroughly, don’t be surprised if your insurance company opts to settle and then increases your business premium. A thorough, professional accident investigation with well complied supporting documentation will substantially decrease your liability.
Manage your insurance company
Most insurance companies want an easy life, but if you are having regular accidents/claims they will probably become reluctant to fight cases because of your poor accident history. Get on board with their advice on what you can do to improve safety, and what they can do to avoid encouraging claims, by not rolling over when a claim is without merit, or is being ‘inflated’. Check what records they expect you to provide, and tailor your systems accordingly. Some employers seem to discount the cost of accident claims as just an insurance issue, but bad employers will end up paying much higher insurance premiums sooner or later.
Pick your fights
There is no point fighting cases that you cannot win, it just reinforces the belief that employees cannot lose and generates more claims. If you have an objectively strong case, then it is worth defending, as winning sends a strong message to employees thinking of trying it on. Get advice – not emotional.
Consider paying people after accidents
Some of our clients have generous sick pay schemes, and some have no provision for paying people at all. Some of both groups will either explicitly or discreetly pay off people who have clearly been injured at work through employer negligence. The upside of such a policy is that it can generate goodwill, and takes away a substantial element of most claims, i.e. loss of earnings. In such circumstances, this reduces the chances of a claim, or reduces it to just the pain and suffering which is usually the lesser part of a potential claim. The downsides of making payments are that it may be taken as an admission of guilt, and may induce people to exaggerate their injuries/recovery times, or persuade people injured in a weekend sports match to attribute their injuries to an accident on Monday morning. This is not an easy subject, but prudent employers consider it on a case by case basis.
Return to work
If you can get people back to work quickly, then it will reduce the chance of a claim, or at least reduce the scale of the compensation. Keeping in regular contact with the injured employee will, to some extent, minimise the feelings of resentment and anger towards the organisation. Do this even if you know early on that they are planning to put in a claim. Keep up a regular flow of communication, encourage them to visit, and keep talking about their return to work, if that is possible.
Reasonable adjustments do not just apply to disabled people. If you can let people do ‘light duties’ , or office work, or work from home, it may not be ideal but at least you are getting some work out of them, and reducing your chance of an expensive settlement. You need to be creative with what work people can do, and consider a phased return to work, taking appropriate Occupational Health advice when necessary. Arrange and pay for counselling or other forms of proposed medical interventions, e.g. physio as a way of helping the employee. Document everything about the return to work discussions, the consideration of reasonable adjustments, the phased return and the subsequent monitoring. All of this can and will help mitigate the size of the compensation claim.
Finally, there is a temptation to take the view that the insurer will cover the costs. Read the small print, and you will find that any prosecution fines are not covered, only the legal costs, under what is now a new regime of substantially heavier fines. Also be aware that personal injury solicitors have up to three years after the accident, or at point of diagnosis of illness, to submit claims. If they know you are also being prosecuted, they will wait to establish the outcome, as a finding of guilty immediately increases their success of winning a more substantial claim for their client, or injured employee. Trying to take witness statements, finding and compiling evidence to support your employee’s claim years after the event is virtually impossible, but if you follow our guidance and keep excellent collated records, then you will be better able to fight subsequent personal injury claims when they arrive.
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.