Can an employer be sued for negligence?

When a business fails in its duty to safeguard employees, and these failings lead to a worker becoming sick or injured, the employee in question has a legal right to seek compensation. In this sense, they are financially protected by their employer’s duty of care. However, just how far does this duty of care extend? And what can employees do if they believe their employer has failed in this duty?

In this guide, we ask whether or not employers in the UK can be sued for negligence and emotional distress. We’ll also look at how businesses can defend against professional negligence claims, and what business insurance policies can be purchased as a financial safeguard.

What is employer negligence?

Employer negligence refers to a situation in which an employer has failed to provide a safe and/or supportive working environment for its employees. Usually, this failure has resulted in the harm of an employee or another third party. There are a number of different ways in which employer negligence can occur. Below we take a look at four common examples of employer negligence.

1. Insufficient risk assessment
An employer could be found negligent for failing to carry out sufficient risk assessments for equipment or duties that leads to an employee becoming injured or unwell.

2. Insufficient training
As with an inadequate risk assessment, poor or non-existent training is also a cause of negligence. This is because if an untrained employee becomes injured or ill after performing their duties or using specialist equipment, they have the right to make a compensation claim against their employer.

3. Failing to maintain a safe working environment
Maintaining a clean and safe workplace is the responsibility of the employer. Should an employee become injured or ill due to poor working conditions, this could be considered employer negligence. It’s worth noting that this still applies in the event of accidental administration errors. For instance, if an admin error has resulted in workplace waste not being collected one week, and this breakdown in the waste management process leads to an accident or illness involving employees or other third parties, the employer could well be found guilty of negligence.

4. Irresponsible recruitment
An employer could also be accused of negligence should they fail to properly screen candidates during the recruitment process. For example, this may apply if someone is hired who has violent tendencies or extreme views that negatively impact fellow employees.

Can you sue your employer for negligence?

Yes, employees do have the right to sue their employer for negligence in certain circumstances. This right is protected in UK law. However, in order for a claim of this nature to be brought against an employer, certain criteria must be met. These include:

• If you are suing after an injury you believe to have been caused by employer negligence, it is important that the injury was officially reported and logged at the time.
• The accident must not have occurred more than three years ago for a claim to be valid. In the UK, the three year statutory time limit means if you wait too long before filing a claim, you could lose your right to sue.
• If you are suing your employer for negligence after sustaining a workplace injury, the accident that caused your injury cannot have been caused by your own actions. While you may still have a case if you are deemed partly responsible for your injuries, as a rule, your employer needs to be found broadly responsible for your injuries in order for you to successfully sue.  

Can you sue your employer for emotional distress?

Yes, under certain circumstances, you can sue your employer for causing emotional distress. Under UK employment law, you have the right to claim compensation if a stress-related illness you have been medically diagnosed with is severe enough to impact your ability to earn and/or live your normal life.

In this sense, psychological health is treated the same as physical health in employment law. Therefore, the same criteria apply when suing for emotional distress as when suing your employer after an injury at work. With this in mind, if it can be proven that any emotional distress caused is down to employer negligence, an employee has a good chance of successfully claiming personal injury compensation.

How to defend a professional negligence claim

If you receive notice of a negligence claim being made against your business by an employee, it can be a stressful time. However, in order to best understand the situation and give yourself the most effective defence, there are a number of things you should do. These include:

1. Notify your insurer In the UK, it is a legal requirement for all businesses who have employees to hold employers’ liability insurance. These policies are designed to financially safeguard your business in the event an employee makes a claim against you. However, if you are made aware that a claim has been made and you fail to notify your insurer promptly, your insurer may refuse to cover your claim. For this reason, talking to your insurer as soon as possible is essential.

2. Prepare a documented timeline of events Memories of significant events can fade over time. Therefore, from the moment you receive notice that a claim is being made against you, try to write everything relevant to the case down that hasn’t already been documented. This should include memories of the incident itself, as well as the chronology of events from the moment the claim is brought to your attention. Collating this information will help you when defending your position.

It’s also vital you do not destroy ANY documentation during this period. The term 'document' includes hard copy paper documents, handwritten notes, emails, and text messages, as well as data on servers, audio tape and video recordings. If you are found to have failed to properly secure documentation, this could be taken into account and act against you in court.

3. Stay calm and take professional advice As well as notifying your insurers, it is a good idea to also seek professional legal advice when a negligence claim is brought against you. An expert solicitor will advise you on your next steps and will be able to start building a defence case, should you wish to fight the claim.

Finally, it’s important to remind yourself that in cases such as these, the burden of proving the negligence case sits with the claimant (the employee). If they cannot clearly show that you had a duty of care for them AND that a breach of this duty directly led to them suffering injury, illness or personal loss, they do not have a strong case.

Here at Markel Direct, we not only offer employers’ liability insurance packages, we also offer specialist legal expenses insurance. This provides your business with additional financial protection and legal advice if a claim is made against you.