Can I get fired for having an accident at work?
The quick answer:
No, you cannot be fired for having an accident at work.
The law provides a list of reasons for which an employee can legally be dismissed and suffering an accident is not one of them.
Further, dismissing someone for whistleblowing regarding a health and safety issue can be automatically unfair dismissal.
The detailed answer:
Fair and Unfair Reasons to Dismiss an Employee
If you are an employee and have worked for your employer for longer than two years, your employer can only legally dismiss you for one of five reasons set out at Section 98 of the Employment Rights Act 1998 being:
1) You do not have the necessary capability or qualifications to do the job
2) You have committed some form of misconduct (but please note unless it is gross misconduct your employer should use the three warning system of a verbal warning, written warning then final written warning)
3) Redundancy (but please note your employer should follow a fair red
4) Your employer cannot continue to employ you due to some other law
5) Some other “substantial reason” (your employer would need to prove to an employment tribunal that the reason was justified)
If your employer wishes to rely on any of these reasons the legal burden of proof rests with the employer to prove the dismissal was fair.
There are some reasons however which are deemed automatically unfair, no matter what the employer says:
1) Whistleblowing (examples include reporting the covering up of wrongdoing, criminal conduct, health and safety issues, damage to the environment)
2) Being a part-time or fixed-term employee
3) Joining or not joining a trade union
4) Acting as an occupational pension trustee
5) Acting as a trade union representative
6) Acting as an employee representative
7) Family reasons such as family, parental leave, paternity leave (including adoption), adoption leave or other time off for dependants
8) Pregnancy and all reasons relating to maternity
9) Taking industrial action (in the first 12 weeks of the industrial action or after that 12 week period if the employer has not taken reasonable steps to resolve the dispute)
Remember, these protections only apply to employees and do not therefore apply to independent contractors or self-employed workers.
Disability and illness following an accident at work
Sometimes a work injury can leave an employee with difficulties trying to do their job. Employers must always look at dismissing an employee as a last resort and should explore how to assist the employee with a return, or continuing, to work.
Your employer should undertake an occupational health assessment to determine whether you are ready to return to work and in what capacity. They might want to ask your GP for a report but they need the employee’s permission. Further, it will often be the case your GP will provide either a sick note if they do not feel you are able to return to work at all or a “fit note” which sets out the changes that will need to be made such as light duties, part-time hours and so forth. You will need to provide your employer with all sick and fit notes.
If you have been left disabled your employer has a duty to make “reasonable adjustments” to enable you to continue working so far as possible. Your employer will need to prove they could not make any reasonable adjustments if they intend to dismiss someone on the grounds their disability renders them unable to do the job.
Examples of reasonable adjustments include: installing a ramp for a wheelchair user, accommodating flexible hours or part-time working, allowing a worker with mobility issues to work on the ground floor, providing specialist equipment to allow an employee to do the work in a different way and more.
If your employer treats you less favourably due to a disability they could be guilty of disability discrimination for which you can take legal action in the employment tribunal.
An important point: settlement or compromise agreements
Sometimes the employer and employee agree to part ways and record the terms, which often includes financial compensation, in a settlement or compromise agreement. You need to be very careful if you have a potential personal injury claim that the wording of the agreement does not prevent you from bringing your personal injury claim. Seek advice from an employment solicitor, which your employer should pay for, on the terms of the agreement and make sure your employment solicitor is fully aware of all potential personal injury claims you may have.
Ayoub grew up in Bury before graduating from the University of Lancaster. After then completing his Post Graduate Diploma in Law at the College of Law, Chester, he joined a prestigious London magic-circle firm where he worked on a multi-million pound product liability claim, being the highest value claim of its type in the world. He then returned to the North West where he joined a leading practice before leaving to start his own specialist practice. To contact Ayoub, visit the contact page.