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  • FIRST POST
    • Cotta
    • By Cotta 2nd Aug 18, 2:02 PM
    • 3,127Posts
    • 1,532Thanks
    Cotta
    Direct Report Injured at work then Sacked.
    • #1
    • 2nd Aug 18, 2:02 PM
    Direct Report Injured at work then Sacked. 2nd Aug 18 at 2:02 PM
    Hi All,

    A office administrator who reports directly to me a few months ago was told by my boss she had to perform some cleaning duties including high ledge windows, from what I understand she was not given a ladder which was required for the job. The girl in question subsequently fell and broke her arm, my boss was unperturbed about this and the girl was not allowed time off to recuperate with the exception of two half days for hospital appointments which she was signed out for (not sure if she was paid). This week her plaster was removed and yesterday she was subsequently called into the office and sacked by my boss being deemed "unsuitable"; she was here around six months. She has now went to her solicitor about the injury who has made contact with us, I personally feel I am not responsible for any of this and my name should not be involved in the case. Apparently our case has been made worse from not allowing her paid time off and dismissing her the week her plaster was removed. My boss has said not to worry as nothing will come from this and she has no case, however should I be concerned my name is being used at all?

    Thanks in advance
Page 4
    • sangie595
    • By sangie595 6th Aug 18, 8:32 PM
    • 5,713 Posts
    • 9,938 Thanks
    sangie595
    @smellyonion - in really do not have time to argue about this. The woman was not sacked for "health and safety". And breaking ones arm, regardless of how it happened, is not a dismissal for health and safety. You can't get sacked for "health and safety". You can get sacked for refusing to do something unsafe, or for reporting unsafe working procedures- both of which can qualify for automatic unfair dismissal, and neither of which apply here. Your advice is therefore wrong.

    And nobody was shouting at you because shouting LOOKS LIKE THIS. Telling you that you are wrong is not shouting, it's telling youryou that are wrong.
    • Savvy_Sue
    • By Savvy_Sue 6th Aug 18, 11:07 PM
    • 39,246 Posts
    • 36,201 Thanks
    Savvy_Sue
    (this type of thing is why, in our office,it's a always me, or my co-owner, who does things like standing on chair to change a light-bulb, or open the loft hatch, not any of our employees.)
    Originally posted by TBagpuss
    and why at our place I start jumping up and down BEFORE anyone climbs onto a rotating office chair to access something they can't quite reach! Especially as we have a kickstool which some people didn't realise would stop moving as soon as you stand on it so is much safer!

    And no-one's allowed in the loft on their own ...
    Still knitting!
    Completed: 1 adult cardigan, 3 baby jumpers, 3 shawls, 1 sweat band, 3 pairs baby bootees,
    1 Wise Man Knitivity figure + 1 sheep, 2 pairs socks, 2 hats, 2 balaclavas for seamen, 1 balaclava for myself, multiple poppies, 3 peony flowers, 4 butterflies ...
    Current projects: ready to decrease / decreasing on all parts of the mohair cardigan pattern! but moved onto wrist warmers for friends at Christmas ...
    • Smellyonion
    • By Smellyonion 7th Aug 18, 5:17 AM
    • 136 Posts
    • 86 Thanks
    Smellyonion
    You changed your tone very quickly sangie595.

    You stated this:
    She wasn't dismissed for health and safety; and "health and safety" isn't one of the reasons for being able to bring a claim before two years anyway!
    Read it a few times and think. It's ok to be wrong. Using exclamation marks when you were clearly wrong is very embarrassing for yourself and constitutes a very poor tone.

    Now your entire argument has changed to now debating whether or not she was dismissed due to a h&s issues.

    I would still argue she was. Everything has a cause and effect. She could very easily link the two.

    She could;
    1) have an injury claim and that she fell due to the employers negligence"

    2) if the broken arm was deemed the be caused by the employers h&s negligence and that led to her dismissal then put two and two together. Therefore she was dismissed due to h&s. She could also argue that they dismissed her to avoid the issue of her reporting it.


    Either way, your opinions are discredited in my view.
    Last edited by Smellyonion; 07-08-2018 at 6:00 PM.
    • nicechap
    • By nicechap 7th Aug 18, 6:04 AM
    • 1,456 Posts
    • 2,840 Thanks
    nicechap
    I see we have a new disruptive voice on the forums, appear more interested in winding up other posters than anything else.
    “Never argue with an idiot. They will only bring you down to their level and beat you with experience.” - George Carlin
    • marlot
    • By marlot 7th Aug 18, 6:56 AM
    • 3,723 Posts
    • 2,851 Thanks
    marlot
    ...Either way, your opinions are discredited in my view.
    Originally posted by Smellyonion
    Please drop it. Sangie is one of the most knowledgeable people around on employment law, and has helped hundreds of people on here when they've been in immense difficulty and pain.

    You seem to be seeking to make a point that exists in your own mind. Go and be borish and argumentative somewhere else please.
    • sangie595
    • By sangie595 7th Aug 18, 10:05 AM
    • 5,713 Posts
    • 9,938 Thanks
    sangie595
    Please drop it. Sangie is one of the most knowledgeable people around on employment law, and has helped hundreds of people on here when they've been in immense difficulty and pain.

    You seem to be seeking to make a point that exists in your own mind. Go and be borish and argumentative somewhere else please.
    Originally posted by marlot
    Don't worry. I suspect that anyone checking IP addresses might find that we have another alter ego here. The posting style looks very similar to someone who has been attempting to prove they are a expert on everything around here recently.

    But thank you.
    • TBagpuss
    • By TBagpuss 7th Aug 18, 12:04 PM
    • 6,959 Posts
    • 9,182 Thanks
    TBagpuss
    and why at our place I start jumping up and down BEFORE anyone climbs onto a rotating office chair to access something they can't quite reach! Especially as we have a kickstool which some people didn't realise would stop moving as soon as you stand on it so is much safer!

    And no-one's allowed in the loft on their own ...
    Originally posted by Savvy_Sue

    We don't go in the loft, but we've been opening the hatches in this hot weather as it helps keep the office a little cooler. And only ever stand on the chairs which have proper legs and no wheels or rotation!
    • Smellyonion
    • By Smellyonion 7th Aug 18, 12:53 PM
    • 136 Posts
    • 86 Thanks
    Smellyonion
    Please drop it. Sangie is one of the most knowledgeable people around on employment law, and has helped hundreds of people on here when they've been in immense difficulty and pain.

    You seem to be seeking to make a point that exists in your own mind. Go and be borish and argumentative somewhere else please.
    Originally posted by marlot



    When you are so adamant of your correctness and self-worth that you reply in such a way that I constituted as rude and argumentative then you better be ready to accept the consequences when proven wrong.


    You do not reply to another remarks "as mostly nonsense" or use unnecessary apostrophes.


    Either way, it is all here for all to see - a life lesson.


    On another note, this a public forum and neither you nor Sangie own the place so telling people to go somewhere else is not within your remit and again proves your egotistic and narcissistic tendency's.
    • marliepanda
    • By marliepanda 7th Aug 18, 1:04 PM
    • 6,896 Posts
    • 15,037 Thanks
    marliepanda


    You do not reply to another remarks "as mostly nonsense" or use unnecessary apostrophes.


    On another note, this a public forum and neither you nor Sangie own the place so telling people to go somewhere else is not within your remit and again proves your egotistic and narcissistic tendency's.
    Originally posted by Smellyonion
    The irony. IT HURTS.

    Also Sangie is using quotation marks, not apostrophes.
    • Smellyonion
    • By Smellyonion 7th Aug 18, 1:10 PM
    • 136 Posts
    • 86 Thanks
    Smellyonion
    The irony. IT HURTS.

    Also Sangie is using quotation marks, not apostrophes.
    Originally posted by marliepanda

    My bad - Meant an exclamation mark.
    • nicechap
    • By nicechap 7th Aug 18, 1:22 PM
    • 1,456 Posts
    • 2,840 Thanks
    nicechap
    Happy to call out others but can not admit their own failings. Sounds like a banned member with an axe to grind. Still no further evidence of helping the OP.

    Yawn.
    “Never argue with an idiot. They will only bring you down to their level and beat you with experience.” - George Carlin
    • Smellyonion
    • By Smellyonion 7th Aug 18, 1:38 PM
    • 136 Posts
    • 86 Thanks
    Smellyonion
    Happy to call out others but can not admit their own failings. Sounds like a banned member with an axe to grind. Still no further evidence of helping the OP.

    Yawn.
    Originally posted by nicechap

    Are you referring to my posts? More than happy to admit to any or apologise if you point them out. As I recall it was my original post around H&S leading to unfair dismissal that was called out.


    And no, not an ex- bandned member.
    • Comms69
    • By Comms69 7th Aug 18, 1:45 PM
    • 5,754 Posts
    • 5,939 Thanks
    Comms69
    Are you referring to my posts? More than happy to admit to any or apologise if you point them out. As I recall it was my original post around H&S leading to unfair dismissal that was called out.


    And no, not an ex- bandned member.
    Originally posted by Smellyonion
    Do you really believe that by have an accident the employee is then protected from dismissal?


    Just think about that logically for a minute.
    • mariefab
    • By mariefab 7th Aug 18, 3:08 PM
    • 319 Posts
    • 172 Thanks
    mariefab
    In order to claim automatic unfair dismissal in a Health and safety case you need more than just any health and safety-related link.
    The claim must fit within one of 5 specific scenarios.
    Sangie gave a couple of examples.
    Those and the other 3 are in (a)-(e) below.

    https://www.legislation.gov.uk/ukpga/1996/18/section/100

    I can't make...

    manager told me clean high windows,
    I fell and broke my arm,
    I was sacked, as unsuitable, after the cast was removed

    ....fit. Can anyone else?
    • Smellyonion
    • By Smellyonion 7th Aug 18, 3:55 PM
    • 136 Posts
    • 86 Thanks
    Smellyonion
    Do you really believe that by have an accident the employee is then protected from dismissal?


    Just think about that logically for a minute.
    Originally posted by Comms69
    In order to claim automatic unfair dismissal in a Health and safety case you need more than just any health and safety-related link.
    The claim must fit within one of 5 specific scenarios.
    Sangie gave a couple of examples.
    Those and the other 3 are in (a)-(e) below.

    https://www.legislation.gov.uk/ukpga/1996/18/section/100

    I can't make...

    manager told me clean high windows,
    I fell and broke my arm,
    I was sacked, as unsuitable, after the cast was removed

    ....fit. Can anyone else?
    Originally posted by mariefab

    My point is that there is a realistic possibility. My debate with the other members was around the fact that they dismissed quite rudely that there was even a H&S clause, not the details as to whether it is plausible. That was the grievance and if you read the thread back, you will notice my point.


    I totally agree that the details are abit muddier but there is still a good possibility. She could very very easily claim that the reason for her dismissal was because she had the accident. She could easily claim that, if or when the injury claim succeeds.


    Take these sections within the act:


    (d)in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
    (e)in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.


    She could argue that her absence was a result of this (ie - her absence was due to her fear or danger of the H&S issues) and this is what caused her dismissal.


    Case law here backs it up:
    https://www.employmentcasesupdate.co.uk/site.aspx?i=ed8541
    Its little more clear cut since the chef outright refused to perform the activity due to H&S but she could argue the exact same thing even if she did not make it explicit to the employer. All she has to do is claim from either of these two rationales:


    Her employer dismissed her due to the employers H&S failings (100, c, ii) since her fall had brought it to their attention.


    or


    Her employer dismissed her due to because of her time off work because she was in fear over the H&S failings (100, d)
    • AstroTurtle
    • By AstroTurtle 7th Aug 18, 4:48 PM
    • 261 Posts
    • 700 Thanks
    AstroTurtle
    My point is that there is a realistic possibility. My debate with the other members was around the fact that they dismissed quite rudely that there was even a H&S clause, not the details as to whether it is plausible. That was the grievance and if you read the thread back, you will notice my point.


    I totally agree that the details are abit muddier but there is still a good possibility. She could very very easily claim that the reason for her dismissal was because she had the accident. She could easily claim that, if or when the injury claim succeeds.


    Take these sections within the act:


    (d)in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
    (e)in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.


    She could argue that her absence was a result of this (ie - her absence was due to her fear or danger of the H&S issues) and this is what caused her dismissal.


    Case law here backs it up:
    https://www.employmentcasesupdate.co.uk/site.aspx?i=ed8541
    Its little more clear cut since the chef outright refused to perform the activity due to H&S but she could argue the exact same thing even if she did not make it explicit to the employer. All she has to do is claim from either of these two rationales:


    Her employer dismissed her due to the employers H&S failings (100, c, ii) since her fall had brought it to their attention.


    or


    Her employer dismissed her due to because of her time off work because she was in fear over the H&S failings (100, d)
    Originally posted by Smellyonion

    Except she was dismissed for being "unsuitable" this could be a world of reasons you are theorizing far to much that its all in relation to a injury and be honest OP is hardly going to tell the Employee to cancel her strong chance PI claim and tell her to give a thin weak irrelevant H&S dismissal claim a shot instead are they?

    More money for the employee in injury than dismissal given her earnings.

    and before you start with the with the oh she could do this after or in conjunction blah blah blah you linked a case law where the employee was directly sacked as a result of a H&S issue and from what I read it was resubmitted to a ET because the H&S reason for sacking were weak and not concrete which means they probably should of sacked him for something else and not quoted H&S issues as the reason why...


    39. It follows from what we have said that we disagree with the Tribunal's analysis of the law. It was not an answer for the Respondent to say that Ms Robertson, because she preferred Mr Killingley's account, was not dismissing the Claimant for a reason falling within section 100 (see paragraph 42 of the Tribunal's reasons). This led the Tribunal to think !!!8211; wrongly in our judgment !!!8211; that it did not need to resolve issues of fact as to the Claimant's actions and reasons for refusing to mop the floor.
    This office admin was sacked because they were deemed "Unsuitable" with less than 2 years service.... An employer can make Unsuitable a world of different things.

    Pick and choose your battles or go argue with a wall in the corner it'll be as useful.
    Last edited by AstroTurtle; 07-08-2018 at 5:03 PM.
    • mariefab
    • By mariefab 7th Aug 18, 4:51 PM
    • 319 Posts
    • 172 Thanks
    mariefab
    I agree that the dismissal has potential relevance to quantum in her personal injury claim.

    I disagree that there is the remotest possibility of a s.100(1)(d) claim here.
    Accepting, for the moment, that she believed that she was in imminent danger.
    She did not leave or refuse to return to the workplace, until the danger no longer existed, when she felt that she was at risk of injury if she stayed and cleaned the windows.
    The case law does not back it up.
    • Smellyonion
    • By Smellyonion 7th Aug 18, 5:01 PM
    • 136 Posts
    • 86 Thanks
    Smellyonion
    Except she was dismissed for being "unsuitable" this could be a world of reasons you are theorizing far to much that its all in relation to a injury and be honest OP is hardly going to tell the Employee to cancel her strong chance PI claim and tell her to give a thin weak irrelevant H&S dismissal claim a shot instead are they?

    More money for the employee in injury than dismissal given her earnings probably.

    Pick and choose your battles or go argue with a wall in the corner it'll be as useful.
    Originally posted by AstroTurtle

    That's true. The injury claim is very strong (based on what we have heard) and will likely cover the expenses from an unfair dismissal claim. But success in the injury claim will likely lead to success in the unfair dismissal. Both should be approached in parallel if the employee is to gain maximum justice since the cut off is 3 months from being dismissed.


    The defence from the employer will always be unsuitability reasons. The employer will obviously not stipulate that the employee was dismissed due to the reasons that I listed above.


    Can the claimant prove beyond reasonable doubt that their dismissal originating in their employer either a) reprimanding them from not attending in a dangerous environment or b) dismissing to brush the H&S failings under the carpet? I'd say so.


    The OP is simply concerned around their own involvement in the litigation and has received the answer. I am suggesting possible lines that the claimant could take.
    • AstroTurtle
    • By AstroTurtle 7th Aug 18, 5:06 PM
    • 261 Posts
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    AstroTurtle
    That's true. The injury claim is very strong (based on what we have heard) and will likely cover the expenses from an unfair dismissal claim. But success in the injury claim will likely lead to success in the unfair dismissal. Both should be approached in parallel if the employee is to gain maximum justice since the cut off is 3 months from being dismissed.


    The defence from the employer will always be unsuitability reasons. The employer will obviously not stipulate that the employee was dismissed due to the reasons that I listed above.


    Can the claimant prove beyond reasonable doubt that their dismissal originating in their employer either a) reprimanding them from not attending in a dangerous environment or b) dismissing to brush the H&S failings under the carpet? I'd say so.


    The OP is simply concerned around their own involvement in the litigation and has received the answer. I am suggesting possible lines that the claimant could take.
    Originally posted by Smellyonion
    In a perfect world yes, but Tribunals and Courts aren't perfect worlds with pure common sense.

    Linking the sacking to a H&S issue that occured whilst employed and then she was sacked after she was fully healed they could even argue they kept her employed long enough to recover blah blah.. There is no end to the yarns they could spin if they have simply said she isn't suitable for the job.

    The hard work then becomes the claimants job to prove it was completely and 100% linked ONLY to the Injury issue WHICH as of yet we dont even know if it's possible as the Employer may of had the correct H&S rules and the Employee may of breached those (Wearing incorrect shoes etc).


    Too many variables, Not enough concrete. Not worth the Time or Money to invest in pursuing given she earns £100 per week. Solicitor will eat that in 15 minutes consulatition time.
    • Smellyonion
    • By Smellyonion 7th Aug 18, 5:21 PM
    • 136 Posts
    • 86 Thanks
    Smellyonion
    I agree that the dismissal has potential relevance to quantum in her personal injury claim.

    I disagree that there is the remotest possibility of a s.100(1)(d) claim here.
    Accepting, for the moment, that she believed that she was in imminent danger.
    She did not leave or refuse to return to the workplace, until the danger no longer existed, when she felt that she was at risk of injury if she stayed and cleaned the windows.
    The case law does not back it up.
    Originally posted by mariefab
    The case law is very limited. It that instance, it was explicit aprior, in this instance it is implied posteriori through the act of falling.


    The s.100,1,d logic:
    The time off work (as a result of the injury) could be the refusal to return to the environment. This caused the dismissal.


    The s.100,1,c logic:
    The injury highlighted H&S failings, the employer dismissed her to avoid the issue.


    Obviously you couldn't take both arguments into court as that would weaken the case, the lawyers would chose the strongest one based on the evidence.

    In a perfect world yes, but Tribunals and Courts aren't perfect worlds with pure common sense.

    Linking the sacking to a H&S issue that occured whilst employed and then she was sacked after she was fully healed they could even argue they kept her employed long enough to recover blah blah.. There is no end to the yarns they could spin if they have simply said she isn't suitable for the job.

    The hard work then becomes the claimants job to prove it was completely and 100% linked ONLY to the Injury issue WHICH as of yet we dont even know if it's possible as the Employer may of had the correct H&S rules and the Employee may of breached those (Wearing incorrect shoes etc).


    Too many variables, Not enough concrete. Not worth the Time or Money to invest in pursuing given she earns £100 per week. Solicitor will eat that in 15 minutes consulatition time.
    Originally posted by AstroTurtle

    I agree that law is very subjected hence the need for hearings. More so than people would imagine. Interms of likelihood of success and payout, the injury claim is what will be pursued.
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