Claims Defensibility

Published On : 12 Apr 2021

The Health and Safety at Work Act 1973 places a significant level of responsibility on employers to ensure their employees operate in a safe working environment whilst following safe working practices, and in recent times, the courts seem to be adopting a stance akin to strict liability – i.e. ,  if an employee is injured whilst at work, then the employer is adjudged to have failed to provide either a safe place of work or safe working practices, and so liability attaches to the employer for the injuries sustained. 

Some companies will be familiar with a scenario where an employee has been injured at work as a result of doing something on their own accord that is outside their job description or usual duties, yet their insurers have still paid an Employers Liability claim, with perhaps only a small amount of contributory negligence attaching to the employee.

Insurers are often accused of settling these claims too easily, but in most cases, the issue is the lack of evidence available to defend the claim, and in the event of legal proceedings being issued, it’s often more commercially prudent to settle the claim given the lack of evidence rather than incur even more costs if the claim goes to court.

In this article, we share some guidance on how you can improve your claims defensibility based on our experience as an insurance broker and the claims we have seen.

So what can you do

One of the most important things most businesses can do to improve their defensibility is to record the details of training being provided, the date on which the training activity was carried out and a statement (or test) to confirm the employee has understood and will abide by said training.

The vast majority of businesses do carry out risk assessments on tasks & processes, but if these are not recorded and turned in to adequate documented training, then there’s no evidence beyond any anecdotal information, leaving your insurers with a defence that is not as robust as it could be. In our experience, the onus is on the employer to prove that H&S related activities took place – the claimant doesn’t have to prove that it didn’t.

If it’s not written down, it didn’t happen

Good H&S risk management is based on assessing the risks that are present in the roles that your employees actually undertake, so your Risk Assessments & Method Statements (RAMS) need to be relevant to all of your business activities, and they need to be reviewed periodically, especially if there are changes to your business.

Having a formal induction plan for new employees (including temporary or agency staff) & relevant training applied consistently (and suitably recorded and reviewed/updated periodically) is also a very useful tool in being able to evidence that you are doing all you can to keep your employees safe.

It’s one thing to get employees to sign to say they’ve received PPE and know they should use it, but if this isn’t being enforced at local management/team leader/supervisor level, then it diminishes the importance of such guidelines. It would therefore become difficult to argue such guidelines are mandatory in that business if they are being largely disregarded by the employees.

Near miss recording is another invaluable tool in being able to assess where potential claims could come from, and how to try to minimise the likelihood of something actually happening.  The challenge for businesses is to create a culture where employees are comfortable in reporting these events; if they face sanctions for speaking out, it’s likely they will keep quiet.

With the financial impact of the pandemic likely to be felt by many businesses in the coming months, ,employers could find themselves unable to retain staff in what are likely to be challenging trading conditions, and it’s certainly possible that some individuals, disgruntled at being let go by their former employers, could look to make spurious injury claims against them to fill the gap in their finances.
In the event that such claims are made, and if you don’t have the evidence to enable your insurers to defend the claim, then don’t be surprised if the claim is paid.