After an injury in the workplace, an employee might start a personal injury claim against their employer. But sometimes the employer might claim the injured person doesn’t work for them.
There’s a range of ways to establish a claimant’s employment status, but some aren’t as simple as you might think. In this article, we’ll break down some examples of the evidence that can be used to establish employment status.
Every new instruction in a personal injury claim requires a thorough risk assessment by the solicitor to establish the initial prospects of succeeding
Will we establish primary liability?
Is there a risk of contributory negligence?
Should a claim be funded by way of a Conditional Fee Agreement, the risk assessment can help in calculating the appropriate success fee.
We then briefly assess quantum, or the amount of damages which should be awarded and why:
How serious are the injuries?
Is there an impact on employment prospects?
Are there any future care and treatment needs?
When we get instructions from a potential client, it’s the solicitor’s responsibility to test their evidence and credibility. Advice should be given to the client on the importance of providing candid and honest instructions.
This advice needs to be given at every stage, from funding
to disclosure, statements, pleadings etc. When we send draft statements and pleadings to the client, we’re obliged to advise our client on the significance of signing a document which includes a statement of truth.
In employer’s liability cases, after initial instructions, we prepare a letter of claim and conduct an Employer’s Liability Tracing Office (ELTO) search. This is an online search to identify the existence of an Employer’s Liability insurance policy covering the Defendant.
Once an insurer is identified, we send the Letter of Claim to the Defendant and/or insurer following client approval, or claims notification form (CNF) if the claim falls within the portal procedure. The Defendant has three months to respond to the Letter of Claim by providing a decision on liability.
But what happens when the Defendant alleges they don’t know the Claimant?
In this example, Mrs A (not her real name) sustained an amputation injury to her dominant hand when using a blender in the course of her employment as a factory worker. She started a claim against her employer on the basis that they failed to provide adequate training and supervision. They also failed to sufficiently risk-assess the workplace equipment she’d been using, i.e. the blender.
There were a number of issues early on in the claim when the insurer recorded on the ELTO search couldn’t trace the Employers’ Liability policy certificate. The insurer tried to contact the Defendant directly but didn’t get a response. An application for pre-action disclosure was made, but the Defendant failed to attend the hearing, and the Court approved the proposed Order. The Defendant didn’t comply with the terms of the Order and an Unless Order application was obtained.
At this point the Defendant instructed solicitors. In response to the letter of claim and Court Order, the Defendant asserted that the Claimant wasn’t
an employee and that no accident occurred on their premises.
It’s rare for a Defendant employer to dispute a claim by alleging that they didn’t
employ the Claimant. But in circumstances where an employee is paid cash in hand, or there isn’t a contract or payslips, this can pose a problem. The burden remains on the Claimant to establish their employment status, as well as the accident.
In this example, the Claimant admitted that she was paid cash in hand by the Defendant, and didn’t have a contract of employment or any payslips. She also didn’t know whether her employer had informed HMRC of her employment status and income. There was no HMRC paper trail, she was paid less than minimum wage, and there were no payslips.
What evidence can be gathered in such a circumstance? What other avenues are open to a solicitor in the absence of these more conventional employment documents?
Solicitors must get clear and detailed instructions from a Claimant regarding their employment at the outset of a claim. Their statement should include details of:
Names of staff members and management, as well as any colleagues.
It can be difficult to get independent witness evidence if the employer is adopting illicit practices. Witnesses may fear reprisals or that their employment could be at risk, if they’re still employed by the Defendant.
If statements cannot be obtained from employees, a Claimant may be able to provide details of friends or family who knew about their employment.. A Claimant’s partner or family member, or a friend or family member who drove your client to and from the defendant’s premises for work, may be able to confirm the client’s working hours, or how earnings contributed to the family income.
Medical records can support the location of an accident and how the accident happened. Ambulance records will confirm the pick-up point.
If an ambulance wasn’t called, it’s helpful to check what time the claimant was admitted to A&E, and consider the how close the hospital is to the alleged accident location.
A company name or a colleague who attended the hospital with a Claimant may have been recorded in the medical records.
The medico-legal expert instructed in the case will have sight of the relevant medical records, and is instructed to comment on diagnosis, causation and prognosis. It’s important to ask the expert to confirm, on the balance of probabilities, whether the injuries are consistent with the accident or set of circumstances described by the Claimant.
Using social media to search for colleagues or supervisors can establish links to the Claimant, especially photographs and tagged photos.
In this example,
we found a photo of the Claimant with a colleague in factory uniform on social media. issued by the Defendant employer, with a colleague, similarly dressed in uniform. Phone data
Solicitors are increasingly using digital technology in investigative practice. Screenshots of messages with a Claimant’s employer contact details in the call history and emails can prove a contractual relationship between a Claimant and the Defendant.
Most job applicants also send CVs to prospective employers through a job listing website or as an email. Ask the client to search their emails for a paper trail of their application.
Conducting a search on a company’s website may be helpful. There may be photographs showing the Claimant at work, or other colleagues the Claimant can positively identify.
What happened with Mrs A’s case
Following collation of documents to support Mrs A’s employment status, the Defendant conceded that she was in fact an employee, although they do dispute the exact circumstances of the accident.
As a result of completing this disclosure exercise, it’s the Claimant’s case that the Defendant served a witness statement that was fundamentally dishonest.
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