Black&White | Case Studies

Client: Confidential (classic car dealership)

Location: South East

Date: September 2003

In the preceding three months, the owner of this small family firm, “A2”, had received correspondence via the solicitor of a previous employee who had fallen on some unsafe steps.

At the time of the accident, the employee, “Sarah”, had been two months pregnant.  She had been worried that the fall had injured her unborn child and for reasons that she subsequently described as “stress” she elected not to return to work.  She understood that A2 was responsible for the safety of the environment in which she worked and, because of A2’s negligence, she held the firm responsible for her absence and therefore liable for her lost income in the period.

Two potential issues ran tangentially here.  Firstly, A2’s liability to pay Sarah’s income for the preceding three months.  This liability would relate to Sarah’s protection from any detriment due to pregnancy.  The other issue related to Health & Safety, and the extent of A2’s responsibility with regards to maintaining a safe place of work.

Although A2 was mainly worried about the implications of the former issue (detriment in pregnancy) there were sufficient mitigating factors for us to believe that Sarah’s case was weak and likely to be disposed of at tribunal.

After the accident, Sarah had not returned to work.  A2 continued to pay Sarah for one week, but when she failed to provide a doctor’s note to explain her absence, the firm decided to discontinue her wages.  Sarah had not advised A2 that she was pregnant.

A2 did not make statutory sick payments to Sarah because she ignored her requirement to provide a doctor’s note and she also failed to communicate with A2 with updates on her condition and her intention to return to work.  A2 legally held this prerogative.

The Health & Safety issue was of more concern.  A2 had incorrectly believed that as the business employed fewer than 5 people it was exempt from Health & Safety regulations.  In fact, the only exemption for a business of that size is the requirement to commit its Health & Safety policy to writing.

A2 acknowledged that the steps in question were, as they described, “dodgy”, and agreed that they should be replaced.  A2 also agreed that they should have reported the accident to the HSE after Sarah had been absent for 3 days.  However, it was clear that some level of doubt surrounded the veracity of the incident itself; it had not been witnessed, and Sarah had not displayed any evidence of injury.  She had simply advised a colleague that the accident had happened and that she was in pain and would be going home.

We ran a basic risk assessment of the premises and identified other areas of concern:

• exposed cables
• limited access space between desks
• dated heating equipment, in need of maintenance

We recommended, given the commercial nature of the business, that A2 should have a specialist risk assessment carried out, and we provided two IOSH approved referrals.  A2 subsequently commissioned a specialist assessment and implemented various improvements, including replacement of the offending steps.  A2 also published a short Health & Safety policy, authored by us.

With regards Sarah’s solicitor’s letter … we prepared a response which asserted that Sarah’s role had been held open for her, and that she would have been paid at the statutory level had she complied with her obligations.  The business could not acknowledge liability for injury where no injury was evidenced and it invited Sarah to provide such evidence within 7 days.  The business also asked that within the same period Sarah would confirm that she had not resigned from her role – this being the assumption her 3 month absence  had evoked.  If Sarah had not resigned then A2 would require medical evidence of Sarah’s inability to attend work and, in the absence of such, would dismiss her from her job.

No medical evidence was forthcoming from Sarah, and A2 issued a formal dismissal in writing.  The dismissal was not challenged.

Client Comment:

“Thank you so much for being so assertive and for getting us through this.”