Working while certified unfit for work.

BattleCorp

Hypothetical query.

I was having a conversation with another boardsie regarding an employer allowing their employee to work even though they are certified unfit for work due to illness. Their view is that an employee isn't covered by their employer's insurance if they sustain an injury while working if they are certified unfit for work due to illness at the time of the accident.

My view is that the employer shouldn't allow them to work if they are certified unfit for work. The employer is negligent in letting them work. But surely the employer's liability insurance would cover the injured employee?

Anybody able to shed any light on this please?

nuac

Mod
Perhaps we could have a discussion of this in general terms without breach of the legal advice rule?

NUTLEY BOY

I answer this as a theoretical question - no legal advice.

The employer owes a duty of care to the unfit one. If the unfit one is more liable to have an accident because of the unfitness and does so that will be an employers' liability claim that will be even harder to contest than is already the general case.

The employer owes a duty of care to the other employees. An employer will be liable to employees injured by the negligence of a fellow employee. If the unfit one is more likely to have an accident and injure others that is an almost needless exposure of fellow employees to the risk of being injured. e.g. the unfit one is driving a fork lift truck while wearing a plaster cast on his leg.

If the unfit one was doing light duties that would not represent a hazard there would probably be no particular problem. e.g. an engineer being confined to office duties pending full recovery.

So, what has this got to do with insurance ? I suspect that the commercial versions of employers' liability insurance contain that catch-all condition that obliges the policyholder to exercise reasonable care to prevent losses. If there was an accident involving the unfit one, as either a victim or a cause of accident, you could be sure that the employers' liability insurers might well consider refusing indemnity for breach of that condition if present in the policy wording.

Two side bar points ;

1. If the employee is receiving social welfare benefits whilst working he is probably in breach of the code of conduct governing such payments.

2. Heaven knows what health and safety regulations are being breached.

To answer the specific question. There is probably no basis to say that an employers' liability to an employee is not within the scope of the policy just because they - the employee - are currently certified unfit for work. However, if there was an accident, the employer might be denied indemnity for the reasons set out above.

GM228

Interesting question.

My take would be that potentially an employer would be in breach of their duty of care if they knowingly allowed an employee return to work.

If someone is certified as unfit to work and an employer allows them to work knowing this, in the event that they suffer further harm, I would think the employer would still be liable for that harm. Employers liability insurance basically covers costs assocciated with an employers breach of H&S or duty of care, would allowing someone work whilst being unfit be any different to any other breach?

Edit: Nutley just beat me too it and as he pointed out it will realistically come down to the individual policy wording.

Sue Pa Key Pa

If an employer knowingly allows an employee back to work, against medical advice, you can expect his insurer to refuse indemnity for any claim brought by the employee or any of his colleagues injured by said employee

Victor

I think context is important. Having a blocklayer with a broken arm climb scaffolding is an obvious hazard.

Having the same person doing paperwork onsite is a less obvious hazard, the risk being that they would try to engage in something approaching their normal duties.

Having the same person doing paperwork offsite is not an obvious hazard.

Social Welfare will accept people doing rehabilitative work.

The insurance not paying seems unfair, but might be correct, depending on the policy. Of course, the employee would be suing the employer, not the insurer - in such a case the employer would have to pay from their own funds.

BattleCorp

Sue Pa Key Pa wrote: »

If an employer knowingly allows an employee back to work, against medical advice, you can expect his insurer to refuse indemnity for any claim brought by the employee or any of his colleagues injured by said employee

So what does the injured party do in that case if they aren't insured?

Is there a legal obligation on the employer to have employer liability insurance?

BattleCorp

Victor wrote: »

The insurance not paying seems unfair, but might be correct, depending on the policy. Of course, the employee would be suing the employer, not the insurer - in such a case the employer would have to pay from their own funds.

Many employers wouldn't have the funds to pay compensation to an employee who suffered permanent disability. It does seem unfair. The injured party would lose out because of their employer's negligence.

GM228

BattleCorp wrote: »

Is there a legal obligation on the employer to have employer liability insurance?

Nope, unlike other countries such as the UK.

BattleCorp

GM228 wrote: »

Nope, unlike other countries such as the UK.

That seems mad.

Sue Pa Key Pa

BattleCorp wrote: »

So what does the injured party do in that case if they aren't insured?

Is there a legal obligation on the employer to have employer liability insurance?

They claim against the employer in the usual way. The employer just won't have the cost funded by his insurers.

Sue Pa Key Pa

Victor wrote: »

The insurance not paying seems unfair, but might be correct, depending on the policy. Of course, the employee would be suing the employer, not the insurer - in such a case the employer would have to pay from their own funds.

Why would it be unfair? It is a deliberate action by the employer to place an unsafe employee in among his workforce, to whom he owes a duty of care

BattleCorp

Sue Pa Key Pa wrote: »

Why would it be unfair? It is a deliberate action by the employer to place an unsafe employee in among his workforce, to whom he owes a duty of care

Why is this any different to an employer who didn't bother training the employee to drive a forklift because he wanted to save money?

That's a deliberate action by the employer to place an unsafe employee among his workforce yet the employee would be insured in such a case.

Sue Pa Key Pa

BattleCorp wrote: »

Why is this any different to an employer who didn't bother training the employee to drive a forklift because he wanted to save money?

That's a deliberate action by the employer to place an unsafe employee among his workforce yet the employee would be insured in such a case.

The scenario is very similar, but who says an insurer will always indemnify the employee in your example? I've seen cases where they haven't

I'm not saying the employees are not entitled to a duty of care from their employer, just that they may have to obtain their rightful compensation directly from him

NUTLEY BOY

Sue Pa Key Pa wrote: »

If an employer knowingly allows an employee back to work, against medical advice, you can expect his insurer to refuse indemnity for any claim brought by the employee or any of his colleagues injured by said employee

Why ?